Law changes to strengthen women's rights by rewriting the Equality Act on the basis of biological sex instead of gender identity might not take place until next summer

[IwantToRetire]

The project to rewrite part of the Equality Act on the basis of biological sex rather than gender identity was proposed by equalities minister Kemi Badenoch in February.

The Equality and Human Rights Commission backed the idea in April, saying it would bring 'greater legal clarity' in eight different areas including allowing organisers to prevent transgender women from entering female-only spaces such as single-sex wards or sports teams.

But it has now emerged that the Cabinet Office has only recently advertised for a civil servant to work on the project – and specifies that it will not be completed until next July.

Whitehall job ad posted internally in August offered up to £75,000 for an official to take charge of the clarification of equality law.

It stated: 'The post is needed to lead a new team established within the Equality Hub at the Minister for Women and Equalities' request. One of the major deliverables is a complex legislative project that is due to be completed by July 2024.

'This is a role to consider whether and how legislative changes to the Equality Act 2010 could be made. This project is intended to be completed by end July 2024.'

Campaigners believe the change required to the law is only a simple tweak, however, and want it to be carried out urgently. They believe a piece of secondary legislation known as a statutory instrument – which would not have to be voted on by MPs or peers – would suffice. It could introduce a definition of women to the Equality Act, stating that it means those who were born female – and not those who were born male but legally changed sex by obtaining a Gender Recognition Certificate.

https://www.dailymail.co.uk/news/article-12494299/Law-changes-strengthen-womens-rights-rewriting-Equality-Act-basis-biological-sex-instead-gender-identity-not-place-summer.html

This was published a couple of days ago, and I did nto see or hear anything about it.

In the article it makes it sound like the Tories are committed to making this change, but I thought at the end of the Westminster Hall debate they just made some vague comment about having to look at it further.

Worrying that it will be an internal appointment given that civil servants have been Stonewalled.

I suspect like many of the articles in the DM and the DT and even TT this is another leak by a faction and / or to get public response so the Government can gauge level of interest, vote winner etc..

If this did happen wouldn't it make the need to clarify gender id policies in schools redundant because the amended EA would make it clear that sex means biological sex?

Also just spotted this which shows that the EA can be amended as shown here https://commonslibrary.parliament.uk/research-briefings/cbp-9619/

Nonsense article. The job ad referred to is not to deliver legislative change. It is to lead a project considering whether and how to amend the Equality Act.

In other words to run stakeholder engagement and public consultation. Not to deliver legislation.

Given that the project is due to finish next summer, legislation would not even be introduced until Autumn at the earliest (and that’s assuming a massively quick turnaround of primary legislation which is not impossible but usually only done for absolute priorities).

So the mails excitement of legislation on this by next Summer is misplaced - it is confirmation that legislation will not be in place before the next general election.

Not sure on the need for the second link. Of course the Equality Act could be amended by primary legislation. Like every other Act.

Good to see it’s still progressing

Although hopefully the CS won’t be too gender ID in views

It just means that nothing will happen before the 2024 GE. They know that. It’s just a way to be able to say in the run up to an election that something is being done while nothing that would make any difference is actually being done. Expect to hear lots about how terribly complicated it all is and can’t be rushed etc.

I know Sex Matters want it done by SI but imo there is no way the government will risk doing this as it is too contentious. They will also want to look at the whole thing to avoid (further) unintended consequences. And to just edit in SM's request would look as bad as editing it for Stonewall. All in all it's highly unlikely to be done this term or (under Labour) next term.

The fight goes on.

What is SI, @southbiscay ?

From the article:

They believe a piece of secondary legislation known as a statutory instrument – which would not have to be voted on by MPs or peers – would suffice. It could introduce a definition of women to the Equality Act, stating that it means those who were born female – and not those who were born male but legally changed sex by obtaining a Gender Recognition Certificate.

I think this is meant to explain them but I wasn't really clear https://www.parliament.uk/site-information/glossary/statutory-instruments-sis/

Not sure on the need for the second link. Of course the Equality Act could be amended by primary legislation. Like every other Act.

Sorry I wasn't clear but have to admit I am useless in this heat and haven't been able to think straight.

What I had meant to write but missed the bit I hadn't thought of, which was that an ammendment to the EA is happening because an individual member won a slot in proposing a Private members bill.

I wonder is any MPs would do something similar re definition of sex in EA, or would they not now be allowedt to do that ie MPs just voting on the proposal of a Private Members bill, rather than all this civil servant having to look at pros and cons and so on.

And in response to another post I am not sure why a public consultation would be part of that. There have been 2 petitions with differing view points. The issue is now how many MPs would vote either way.

Although can see if whatever wording the civil servant (yet to be appointed) comes up with some nonsensical wording that leaves everything open to interpretation again, that this would be another delay.

Everyone knows what the issue is.

Its whether, assuming they ever get the chance, MPs will vote for a wording that states clearing that sex mean the biological sex that you were born.

In the article it makes it sound like the Tories are committed to making this change, but I thought at the end of the Westminster Hall debate they just made some vague comment about having to look at it further.

That's all that can be expected of a petition debate. The motion they vote on is always simply that this house has considered the petition.

It was still a huge step forward when you consider the quality of the debate compared with the unopposed dross that they were coming out with a few years ago.

When the law was changing on a daily basis during covid - that was all statutory instruments.

Its hard to know with all these different versions of what is going on to be sure of anything, although the job ad does sound real. Wonder why it is an internal ad. To stop campaigners infiltrating.

I dont understand why it should take so long. Someone with legal knowledge surely presents amended wording that would clarify that sex mean biology. MPs are then asked to vote on it.

I recognise that there are sections that would need to changed, eg the single sex exmpemptions would not be needed, but there may need to be exemptions the other way round (which is what it should have been to begin with) when trans women can be included.

But again MPs would just vote on it.

Why wouldn't they want to use their majority to get this through. Dragging it out like this will just mean it will then be added to all the things the Tories haven't accomplished.

Or is this because in fact there are many more trans allies among the Tories than any of us are aware. Meaning they cant be sure of a majority and would prefer unfinished business to a defeat in the Hoc?

When's that election we have to have by the end of Jan 2025 going to be.

I know that the meeting on the petitions didn't read a conclusion.

That is what I am saying.

When and how after the meeting did someone (Kemi Badenoch?) decide to "progress" it. ie something must have happened post meeting for it to have got to the point of creating a post to deal with it.

They could have just left it with their vague statement about having to look into it in more depth. And then waffled on about yet more national emergencies to deal with (and lets face it the Tories have had a few, Brexit, Covid, Ukraine, fuel, refugees in hotels, schools falling down) so no time to spend on a fringe issue.

Yes another MP could probably use a PMB slot to table a change but it would almost certainly not get anywhere. There is a reason legislation is generally drafted by parliamentary counsel - it is because a lot of thought goes into wording to ensure it is as legally watertight as possible.

Public consultation is a standard part of the legislative process.

The sex matters proposal is extremely dubious. They want to use s23 of GRA to amend the Equality Act.

I would highly doubt that could be done. Section 23 allows modification of the operation or Acts, not amendment of Acts. It is also clear from explanatory notes that this is intended to cover prior legislation which might not have been considered when the GRA was being drafted.

Using it to amend an Act that was passed in full knowledge of what the GRA said is likely I think to be ultra vires for a number of reasons.

That’s because specific powers were available under primary legislation to do so.

"Using it to amend an Act that was passed in full knowledge of what the GRA said is likely I think to be ultra vires for a number of reasons."

It might be ultra vires but not because the Act was passed in full knowledge of what the GRA meant.

There is evidence in Hansard that when Parliamentarians sought clarification of the implications of EA2010 in terms of the GRA that there was obvious confusion and misunderstanding, or misrepresentation, of the relationship.

https://hansard.parliament.uk/Lords/2010-01-11/debates/10011139000077/EqualityBill#contribution-10011146000033

Reading that, I have to wonder what would have happened if the Bishop of Chester had been present to move his own amendment? If he had pressed on and Peers did gain "full knowledge" of what they were being asked to approve?

It sounds like standard process, just reading pp

Wasn’t there a letter from Kemi to ECHR on this who said it’s up to gov but go ahead

It all takes time but this path would stop with Labour

It seems the only (?) chance within law atm

I can’t think of other ways to get single sex spaces, maybe someone else can

I can't in all conscience vote Labour any more. Unless the Tories actually sort this out before the GE to show good faith in protecting women's rights I can't vote for them either. What a let down.

The link you provide actually shows that Parliament did consider various aspects of the interaction between the GRA and the Equality Act.

But more importantly, when I talk about full knowledge of the GRA, I don't mean individual MPs or Peers. I mean that the Equality Act was passed after the GRA. The obvious purpose of s23 GRA is to modify the operation of legislation which drafters might not have identified as needing consequential provision as a result of the GRA.

In other words, there were thousands of pieces of legislation on the statute book when the GRA was passed. Drafters will have tried to identify any of them which needed to be amended or adapted to reflect new arrangements in the GRA, and expressly done so on the face of the GRA itself. But s23 recognises that references to gender or sex in pre-existing legislation were ubiquitous and so drafters may well not have caught them all.

So there are two big barriers to amending the Equality Act using section 23. First, and most fatally, the power is only to 'modify the operation' of a statute. Not to amend the statute itself. Second, because the power is explicitly highly limited - the explanatory notes explain that it is "strictly limited and is provided due to the entirely novel nature of this legislation. Legislation has made distinctions on the basis of gender for centuries, and the use of gender-specific terms, though it has reduced, nevertheless continues in some contexts. Though a thorough analysis has been conducted of areas in which the facility to change gender may cause difficulties or complexities, this section acknowledges the possibility that other instances may come to light in the future." In other words, it's about modifying the operation of pre-existing legislation, not about amending future legislation.

Yep. Me too.

If women's equality and rights are going to be a desperate carrot to try and win an election, which means leaving this all to roll around for another year?

Fuck that. Actions, not words. And it proves that the Tories are too weak to stand up to the religion having taken over the civil service and many of their own people, which means Stonewall and a bunch of extremists now make the law and we just have a lot of very expensive people wittering in the HoC to no purpose.

If that's not enough of a crisis to get the Tories off their bums and doing something, then nothing is.

You have to go through the process though? It looks like consultation is part of it. Yes it’s frustrating and I’m
sure Kemi and co are feeling it, but she is pushing forward despite legal weeds

I can see why people think as you do but I find it a hard read. Our only way out of this is legal change

Labour will stop this avenue dead

Which legal change would happen if not this one?

It's still hot, I'm very tired but

Would it be quicker to just repeal the GRA?

Because if this heat ever subsides I am very willing to email every single MP, and write letters to newspapers and any other thing we can think of to start the process.

Those changes were made using Ministers' statutory powers under the relevant legislation, not by statutory instruments.