Keep Prisons Single Sex – Our position is that the concept of “legal sex” through the GRA is erroneous

[IwantToRetire]

KPSS Executive Summary

Since the passing of the Gender Recognition Reform (Scotland) Bill at the end of December 2022, “legal sex”, and related concepts, have become established in debate, with the Gender Recognition Act 2004 (GRA2004) being described as enabling “legal sex change”. In tandem, and with the intention of protecting the sex-based rights of women and girls, there have been calls that this necessitates a qualification of the protected characteristic “sex” in the Equality Act 2010 (EA2010), amending it to “biological sex”.

However, our position is that this understanding of GRA2004 is erroneous and overstates the effect of a gender recognition certificate, that “legal sex” has been misconceptualised, and that, whilst clarification of the law is desirable, qualifying “sex” in legislation in any way is unnecessary, has undesirable consequences and carries significant risk throughout domestic legislation, as well as to sex-based rights under international law.

We argue that GRA2004 does not operate to effect a “change of legal sex”. Rather, this “Act to make provision for and in connection with change of gender” enables a qualifying individual to obtain legal recognition of their “acquired gender”, with resultant legal consequence related to that individual’s legal status. Our position is supported by a reading of GRA2004, prior case law and the wording on a full GRC.

The consequence of the legal status of an “acquired gender” is unclear, in particular where it comes into conflict with rights of men and women on the basis of sex. This lack of clarity, together with concerns about privacy have acted to obscure sex in law. In tandem, the meaning of the term “gender” in law now lacks certainty and, given the social trend to use the terms sex and gender interchangeably, requires clarification.

Whilst we agree that “legal sex” is a concept that has legal standing, our position is that an individual’s legal sex is simply the legal registration by the State of their sex as observed at birth which forms part of their legal identity. This registration is fixed and unchanging, just as sex observed at birth is immutable.

Hence, GRA2004 could not, by definition, effect a change of “legal sex”. Section 9(2) clarifies that this registration of “legal sex” remains an event unaffected by the grant of a GRC. Indeed, the operation of the exceptions to legal recognition of acquired gender in section 9(3) depends on the persistence of this “legal sex”. If a GRC holder underwent a “change of legal sex”, that individual would effectively be able to claim that they had legal recognition of both sexes, male and female, one as registered at birth and the opposite as “changed” in accordance with GRA2004. This is incoherent and legally undesirable.

When legislation refers to “sex” it is referring to the registered sex observed at birth of persons legally recognised in law via State registration. In EA2010, “sex” was not left unqualified due to error, omission or confusion. It was also not replaced with the adjacent term “gender”. Rather, there was no need to qualify what sex is in law: it is a fact registered at birth and part of a person’s registered legal identity and there is no basis in legislation for any other interpretation of “sex”.

The contrary position, with which we disagree, sees “sex” in legislation split into an unchangeable aspect (“biological sex”) and a changeable aspect (“legal sex”). Splitting sex into two separate concepts in this way means that for any individual and at any time, whilst their “biological sex” is fixed, public and (in the overwhelming majority of circumstances) known, their “legal sex” is changeable, private and, unless and until declared, unknown. This complication creates uncertainty and impacts data collection. If robust data on sex registered at birth is not being collected, it is impossible to measure and address discrimination against women on the basis of sex.

It is unnecessary to clarify that “sex” in legislation means “biological sex” and it is also undesirable because the very act of adding a prefix or qualifier implies that “sex” has been, or may be, split into separate concepts, with each prefix requiring a stable definition. In our view such a move results in more uncertainty, not less, that due to the interwoven nature of legislation and policy will have an inevitable widespread impact.

Registration and recording of sex at birth, as a key demographic statistic of significant importance for policy decisions, is a legitimate function of the State. Yet, disrupting “sex” in this way operates to break the system of sex registration at birth upon which legal protections for women are founded.

Introduction to longer document at https://kpssinfo.org/sex-and-gender-in-legislation-pdf/

How strange. I really thought FWR contributors would be all over this analysis of the importance of the word sex.

Particularly from a group like KPSS.

I think theoretically they are right.

But in practice we know it doesn't work based on biological reality.

So if you cant rely on people to follow basic biology then you have to spell it out.

It's hard to comment because it's hard to follow what they're saying and where it leads. Are KPSS saying that we shouldn't campaign to clarify that "sex" in the Equality Act means "biological sex"? You might get more reaction if you put that in the thread title.

They are saying I think that sex should not be clarified/changed to biological sex since this is patently what it already means and would have knock on consequences (eg debates about the “meaning” of sex.

But that clarification would be desirable around the fact that gender recognition is not equal to a change in legal sex, does not abrogate the sex stated on birth certificate, and does not therefore confer any of the rights that biological sex confers.

I think the GRA is the problem; by allowing people to record their desired gender by altering a sex marker on their birth certificate was always going to cause issues.

Sex Matters have also said that they don't think a prefix of biological should be added to the Equality act:
https://sex-matters.org/posts/single-sex-services/why-we-dont-want-biological-added-before-sex-in-the-law/

Thanks for sharing this.

I find their analysis and argument persuasive.

In a nutshell they are saying that i) your legal sex is / should be the same as your biological sex, and it’s your birth sex; and ii) that a GRC establishes the concept of “gender” as something different from sex and as something recognised in law as conferring certain rights on that individual in respect of sex discrimination legislation.

Yes and having read the articles I agree that it’s the right way forward

I think the concept of 'legal sex' should be strangled at birth. It is plain nonsense and leads to bizarre and unwanted outcomes. Changing your 'gender' (a social construct) has no impact on your sex. I hope Lady Haldane's judgement is appealed.

They’re correct, of course. The problem arises in part because of the deliberate conflation of “sex” and “gender” in the GRA.

The EA is, in fact’ fairly coherent when it comes to definitions. Adding a modifier to the word “sex” would solidify the concept of different types of sex.

Working out all the pitfalls before you fall into them is difficult!

Thanks for sharing, OP. Somehow I missed this yesterday.

Thanks for sharing. I've been looking at the links and I understand better now.

So, for the purposes of the Parliamentary debate on June 12, clarifying that "sex" means "biological sex" is the not same as writing the words "biological sex" into the EA. Instead KPSS are proposing some extra wording for the EA that explains what "female persons and women" means and what "male persons and men" means. Which is (in my interpretation of their wording) "sex as observed at birth" and is regardless of gender id, GRCs, transition etc.

Sounds good to me!

I'll have to read it again! I was persuaded after reading it that it was right, but I think my brain has now got so clogged up with how the TRAs talk about it that I would find it hard to articulate.

I think part of the problem is that the EA was ammended after the GRA was passed, as it put forward the notion that you could change sex.

This then impacted on the section in the EA about sex as a protected characteristic.

And as has been admitted by one of the Labour stooges (a woman) that the EA was ammended to effectively say that for all (legal) purposes someone with a GRA had changed sex, they then inserted the "exemptions" ie the times when women's biological fact was recognised. Which by the way is what the Lady Haldane ruling said. She didn't change anything. She merely confirmed that this is the current situation if you use the wording and implication in the EA.

Ideally of course we should just get rid of the GRA - IMO!

But I fear the the "custom" that has grown up round the interlink between the GRA and the EA is the problem.

Would the KPSS interpretation, if acknowledged, be possible to inforce when for so many years the TRAs having been pushing the boundaries.

The discussion now, as opposed to when either Act was written is that the use of the words gender and sex have become interchangeable.

So although I think KPSS are right, I think that the passage of time means the EA has to be reworded to explicity state that sex means biology. Because at the time it was written that is how people thought.

If someone wants to bring in a law that says sex and gender are the same thing then that is what they should do.

In the meantime we need to be able to say what the original intention was.

That sex is a protected characteristic based on a biological reality.

But I suspect that the Westminster Hall debate, far from dealing with exact use of words, meaning and so on, will be drowned out in a deluge about the victimisation of trans people, who are the most oppressed.

I suspect that the Westminster Hall debate, far from dealing with exact use of words, meaning and so on, will be drowned out in a deluge about the victimisation of trans people, who are the most oppressed.

I think at best it will be a fight over who is "most oppressed". But anyway words and meanings aren't best handled by a parliamentary debate. That should come later. It's more about clarifying that something has gone wrong in this act (or this pair of acts) and needs to be fixed. And the direction that the fix needs to head in.

It's more about clarifying that something has gone wrong in this act (or this pair of acts) and needs to be fixed.

Well if it achieves that, it would be a good step forward.

The fact that both petitions are being debated at the same time recognises both sides, gives both a voice and a chance for agreement or disagreement and it is a significant step to end #NoDebate. It could even be the final nail on the coffin for that, on the parliamentary arena at least.

It will be interesting to see who speaks for either side and I'm especially hoping that Russell Lloyd Moyle speaks, I always thinks he does more for the 'gender critical' side than he realises.