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..

Out of interest - does anyone know how safe Kemi Badenoch's seat is? We could do with her remaining when/if on the opposition benches.

Would it be quicker to just repeal the GRA?

Yes

@PlanetJanette @JanesLittleGirl Yes thank you I am well aware that the coronavirus rules were changed on the daily because of primary legislation which gave the minister the power to do so.

Nevertheless the rules were changed using statutory instruments. They're all still there on the legislation website, labelled 'Statutory Instrument'.

I'm not clear what your point was. I was not making any point regarding the feasibility of clarifying the EA using an SI, I was merely providing the covid rules as an example of SIs for those who might not know what one was.

I remembered that the House of Commons Library had done a briefing for the Westminster Hall debate, and although not perfect seems to have done much of the work the new post (if ever filled) has been briefed to do.

From a skim read I pulled out these comments:

Given the legal uncertainty and the debate on the subject, on 21 February
2023 the Minister for Women and Equalities, Kemi Badenoch MP, wrote to the
EHRC to ask for its “considered advice of the benefits or otherwise of an
amendment to the 2010 Act on the current definition of 'sex'”.

The EHRC replied on 3 April 2023 with its ‘initial response’. The letter stated
that amending sex to mean biological sex would clarify the law:

The EHRC has looked at this issue over several successive Board meetings and
has considered various routes forward, all of which have advantages and
disadvantages for one group or another. There is no straightforward balance,
but we have come to the view that if ‘sex’ is defined as biological sex for the
purposes of EqA, this would bring greater legal clarity….
…
On balance, we believe that redefining ‘sex’ in EqA to mean biological sex
would create rationalisations, simplifications, clarity and/or reductions in risk
for maternity services, providers and users of other services, gay and lesbian
associations, sports organisers and employers. It therefore merits further
consideration.

and

The EHRC did not, in terms, recommend amending the definition of sex to
mean biological sex; it said that doing so “merits further consideration”. The
EHRC also noted that it was responding to the specific question asked by the
Minister and that there might be other ways of amending the Act to create
more legal clarity:

we wish to note that this letter considers the consequences of the narrow and
limited amendment on which you sought our advice. There may be other ways
to achieve roughly the same ends, for instance a series of more targeted
amendments to specific provisions in the EqA, on which you will wish to take
additional advice

https://researchbriefings.files.parliament.uk/documents/CDP-2023-0120/CDP-2023-0120.pdf

Hi Pencils

My point was that while there were lots of SIs used to amend the primary legislation, there were far more changes that were implemented via directions, designations and notices. I agree that this has no bearing on how any change to the EA might be implemented.

I disagree with PlanetJanette on whether a SI would be appropriate. SIs for the EA have to be affirmative so would be laid before Parliament in draft form and would have to be approved by both houses. I can't see how fresh, primary legislation would be required.

Sadly, I'm less confident about what any amendment to clarify the meaning of sex as biological sex would achieve. The PCs included in the EA are all described in the vaguest of terms to avoid having to define each of them in minute detail and running the risk of missing something. If sex were to be clarified as being biological sex then every known chromosome variation or DSD would have to be listed and assigned as male or female. The SI would sink under the weight of gotchas and 'what abouts' thrown at it.

Then, assuming that a SI is delivered with a workable definition of sex, what would change in practice? The EA has paragraph after paragraph of single sex exemptions. It even assumes that sex means biological sex by including a paragraph which says that it is not a breach of the Act to exclude people with the protected characteristic of gender reassignment (which includes people with a GRC). Despite this, actual single sex spaces are about as common as hen's teeth. No clarification of the EA will change this because applying the single sex exemptions is voluntary. We've seen the challenges that poor woman in Brighton has faced by trying to set up a single sex rape group. Will clarifying the EA solve her problem?

This is the real problem with the EA. It assumes a degree of reasonableness that no longer exists. The law needs to be changed to compel services or spaces that might be single sex to be explicit as to what, if any, degree your service or space is 'single sex'. If allow transwomen into the Ladies' loo then you should label the loo as 'women and transwomen'. Any failure to do so would be a breach. The provider can't just look the other way but would have to own their decision.

Does anybody have a better idea?

This is the real problem with the EA. It assumes a degree of reasonableness that no longer exists.

Absolutely this. The good will is gone. The reasonability is gone. It has to be assumed that those with poor intentions will exploit any loop hole to the last possible decimal place with absolute zero conscience. Law made proof against personality disorder is rapidly becoming a real thing.

And it must become an equality requirement that services must provide, certainly for taxpayer and local authority funded resources, a female only option which is firmly gatekept from male service users irrespective of their legal fiction or identity choice. Alongside mixed sex options, male options, add seahorse and clownfish options for all I care, but this business of male people playing dog in the manger on principle of having to shit on women to feel happy has to be stopped.

This would include protected female only wards, female only hcps, female only refuges with a proportionate to the population number which are mixed sex and women given choice - the majority would be single sex - and Local Authority funding required to insist on an accessible female option to ensure there is no female exclusion in order to grant funding.

How did legislation work before the GRA?

Did places have to provide by law a female and male area and how was that defined?

If allow transwomen into the Ladies' loo then you should label the loo as 'women and transwomen'.

This is pretty much what we have now just without the longer sign

I’d amend using biological sex, using the EqA and enforce somehow

Venues might need third space

I cannot see how else to do it, either we get single sex spaces back via law or men have access

If allow transwomen into the Ladies' loo then you should label the loo as 'women and transwomen'.

And Non Binary people and femme queer men and many many other identity choices that may mean a male person would prefer not to use the men's provision and would prefer to be among women. It is not just those who choose the identity of transwoman.

Which is great, IF this is a mixed sex women's provision alongside a female only provision that all male people of all identities stay out of, and women consent to the mixed sex experience as much as the male mixed sex space users do.

Equality of choice, equality of respect, equality of inclusion.

If you believe female people do not deserve this, then you're a male supremacist, not a trans 'ally'.

We need female sex to be only that for spaces, sports

I can’t see any other way otherwise it’s just what we have now?

@EasternStandard the same regulations apply now as they did pre-GRA. The Workplace (Health, Safety and Welfare) Regulations 1992 state:

20.—(1) Suitable and sufficient sanitary conveniences shall be provided at readily accessible places.

(2) Without prejudice to the generality of paragraph (1), sanitary conveniences shall not be suitable unless—

(a)the rooms containing them are adequately ventilated and lit;

(b)they and the rooms containing them are kept in a clean and orderly condition; and

(c)separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside.

Note that while a workplace has to provide separate facilities, they don't actually have to require their employees (or patrons) to use the correct facility and I can't see that changing.

Did places have to provide by law a female and male area and how was that defined?

None of this was necessary as the social contract that existed by its very practice, recognised that their were (and of course still are) only 2 sexes.

The problem in the past was the assumption that places were there to cater for men, and it used to be more about allowing women to participate and that included in providing accommodation / services for women.

So the provision of public toilets for women came as much from business wanting those women who now had spending power to come to their shops. I haven't checked but I doubt anyone at that time said well they can just use the men's. Society recognised that men and women were not the same, and even if public arguements would have been about modesty etc., there was the element (acknowledged but not necessarily vocalised) that women were not safe to be alone in a male dominated place.

Quite rightly it could be said that all of this was based on old fashioned sexism. And that has been part of the power of the TRA arguement that they promote that they are the vanguard of the next step away from sexism, by implying that sex itself is not a factor / biological reality. Instead arguing that it is about how we identify, ignoring the biological reality that women's sex is why they are discriminated against.

So in a sense it is / was about tradition. Not forgetting that queer politics has always been about challenging the norms.

Not really relevant but have found this - I wonder if it is true?

In 1423, a 128-seat toilet hanging over the River Thames at the mouth of the Walbrook was established by London's first mayor, Richard Whittington.

This "house of easement" was divided into 64 seats for men and the same for women, and is believed to be the first segregated-by-sex public toilet. Its location meant it was washed out by the tide twice a day.

@IwantToRetire They may say all those things but that’s not our reality

We are arguing for privacy and dignity and safeguarding

Ok thanks for HSE guidelines @MelodiousThunk

Men and women spaces where possible, but currently no law to say who uses what

So now men feel they should have access to female spaces what next in the law?

To get privacy and dignity etc surely we need to legislate for actual separation by sex

‘Enforce somehow’ covers a pretty big hole though.

When you encounter someone in the women’s bathroom that you believe to be a trans woman, how on earth do you propose verifying whether she is trans or not?

Just on the question of SIs, as I understand it Sex Matters propose using s23 GRA powers rather than any power under the Equality Act to amend the Equality Act.

I can’t see any Equality Act power that would allow the amendment of primary legislation.

I was thinking more of a venue fine when writing that but if we have male / female and mixed and the law says biological sex for first two at least we’d set out what is expected

@EasternStandard it’s hard to see how Parliament could legislate to actually enforce use of the sex-correct toilet. The reality is there are a lot of venues where the loos are a bit of a free-for-all, I’m sure we’ve all been to gigs and clubs where women go into the mens as the queues are shorter (or for other reasons!) I’m not sure how enforcement would work.

But even in a venue, how would it be enforced?

The vast majority of scenarios that come in for complaint here are not settings where ID is required to be produced or checked (prisons and hospital admissions, admittedly, are the exceptions).

At this point I’d be happy with the updated expectation

We don’t even have that

Venues refuse single sex gatherings - see Brighton thread

Change the law so we have single sex back and it is known by everyone

Even if some gigs have a free for all or whatever if you take gender ID out of the equation the vast majority use the correct male / female area just by societal rules

They may say all those things but that’s not our reality

Not sure what things you think are being said.

My post was about how custom and practice meant that in any number of things men and women were segregated by sex.

A social contract that could be both supportive but on occassions discriminatory.

That social contract no longer exists thanks to queer politics whose main aim is to dis-establish "norms".

And the willingness of people who could uphold them being more interested in ingratiating themselves with the disrupters.

(This was in answer to an earlier question about how this had been enforced by law in the past.)

On one level there shouldn't even be a need to discuss whether single sex provision is still needed. Common sense and accepted practice knows that it is.

But a loud and powerful minority has managed to get people to think that what is natural is now unacceptable.

On one level there shouldn't even be a need to discuss whether single sex provision is still needed. Common sense and accepted practice knows that it is.

I agree but we are no where near that.

So I can’t see it happening in any way other than explicitly through the law

If you can't see any Equality Act power that would allow the amendment of primary legislation then you must have missed Part 16 paragraphs 207 and 208.

Neither of those sections are powers in themselves. They set out how powers in the Act are to be used.

Can you say which specific power you think could be used to amend the provisions in respect of sex discrimination?

Agree 💯

I think that we should go all in.

1. Any facility that might be a single sex facility must be labelled as either Male, Female or unisex with penalties for failure to accurately label the facility.

2. Amend the Sexual Offences Act 2003 to make entering a single sex facility reserved for the opposite sex, irrespective of any gender reassignment protected characteristic, an offence similar to indecent exposure. Then we could act the same way as we do when we encounter a flasher - photograph them and call the police.

I have now completely run out of fucks.

They are the powers. Please explain why you think that they aren't?