From 21 September: for info…
I am writing to update you on the process we will follow in relation to eligibility for seats reserved for women under the Equality Act 2010.
I recognise that this is a sensitive issue and that the clarification below will be difficult and upsetting for many colleagues and members. I want to set out clearly both what is changing and, importantly, what is not changing.
UNISON’s policy, agreed and reaffirmed through our democratic structures, is clear:
• trans rights are human rights;
• trans women are women;
• trans men are men; and
• non-binary identities are valid and should be recognised in law.
UNISON remains committed to these principles and will continue to campaign in support of them, alongside our wider policies and objectives.
At the same time, as a democratic trade union, we have a responsibility to comply with the law as it currently stands. The law, government policy and workplace practices will not always reflect UNISON’s policies. There have been many legal and political decisions over the years with which we have disagreed, but where the law applies to our activities, we must comply with it while continuing to campaign for change.
The Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers, followed by the Certification Officer’s decision in Flaherty v UNISON, has clarified how the law applies when UNISON relies on the positive action provisions of the Equality Act 2010, including in relation to reserved seats for women and women-only events. In these circumstances, references to sex must be understood and applied in accordance with the legal meaning set out by the Supreme Court.
As a result, UNISON has made changes to the relevant eligibility criteria, policies, procedures and guidance where these rely on the positive action provisions of the Equality Act 2010. These changes are necessary to ensure that our processes comply with our current legal obligations.
For the purposes of seats reserved for women under the Equality Act 2010, eligibility is determined by “biological sex”. In this context, biological sex means the sex that was assigned at birth, and a reserved women’s seat is therefore open only to members who were assigned female at birth.
This is a clarification of the eligibility requirements for these particular seats. It does not represent a change to UNISON’s democratically agreed policies on trans rights or the rights and recognition of trans, non-binary and gender diverse people.
For nominations, UNISON will provide a clear definition of eligibility. Individuals putting themselves forward will then be asked to self-certify that they meet the eligibility requirements. We will provide further information and guidance on this as part of the nomination process.
These changes are intended to ensure that our election processes are conducted in accordance with current legal requirements and applicable UNISON rules. We will continue to keep legal and regulatory developments under review and make any further changes necessary to meet our obligations.
I know that for some people this distinction between our policy position and our legal obligations will not make this update any less difficult. I want to be clear that UNISON remains committed to supporting and representing all our members and to campaigning for the policies agreed through our democratic structures, including changing the law for legal gender recognition in the UK. We will continue to engage with other trade unions to find a way to keep our structures as inclusive as possible within the context of the law.
Our commitment to those principles has not changed.
Best wishes,
Andrea Egan
General secretary
UNISON