I don’t know if this helps bring understanding to the difficulties. Even though obviously the meaning of sex in the EA will never get clarified now, how it interacts with the GRA is here, by Dr Michael Foran who is a law lecture - bearing in mind that GRCs will be easier to obtain:
………. All this below is quote.
An overview of the proposal to clarify the meaning of sex in the Equality Act. Background: In recent years there has been significant uncertainty over the interaction between the Gender Recognition Act and the Equality Act. Some things are settled law, others are uncertain.
What is settled law:
- The Equality Act protects both sex and gender reassignment. Sex refers to males of any age and females of any age. Gender reassignment refers to those who are proposing to undergo, are undergoing, or have undergone a process of changing attributes of sex.
- Sex in law is, by default, biological sex. Everyone is legally classed as their biological sex except where a GRC changes sex for some purposes.
- Being protected under gender reassignment does not change sex in law for any purpose. It protects against denial of employment, goods & services, or housing as compared to someone of the same biological sex who does not have the GR protected characteristic. So trans women by default men and are compared to non-trans men. (Green v Secretary of State for Justice).
- Single-sex services are lawful. Schedule 3 of the Equality Act allows providers to set up and maintain single-sex services such as rape crisis centres and female-only changing rooms and toilets. It also allows them to exclude anyone on the basis of sex or gender reassignment once proportionate.
- Proportionality does not require a case-by-case analysis. General policies can be proportionate and most policies are general (Reference by AG for NI re Abortion Services (Safe Access Zones) Bill)
- Being protected under gender reassignment does not entail an entitlement to use single-sex services intended for members of the opposite sex. (Croft v Royal Mail; Green v SoS for Justice; FWS2 [Inner House])
What is currently uncertain:
- Whether sex in the Equality Act means (i) biological sex or (ii) biological sex unless modified by a GRC.
- Whether biological females are protected as a distinct group under the Equality Act.
- How precisely the Schedule 3 exceptions which allow for single-sex services operate. If sex means sex as modified by a GRC these exceptions become more complicated to rely on and that can affect how useful they are in practice, given concerted campaigns to spread misinformation about the law here.
- Whether single-sex associations defined by reference to biology (eg. Lesbian walking group, informal support network for female victims of male violence) are lawful. If sex doesn't mean biological sex, these are unlawful.
- Whether trans men who become pregnant are protected from pregnancy discrimination. If a GRC modifies sex for the Equality Act they likely lose protection.
- Whether sexual orientation is defined in the Act by reference to biological sex or biological sex unless modified by a GRC.
What this proposal will do:
- Clarify that sex in the Equality Act means biological sex, referring to the ordinary common law position from Corbett v Corbett.
- Make it clear that single-sex services and associations are defined by reference to biological sex.
- Make it clear that trans men are protected from pregnancy discrimination regardless of whether they have a GRC.
- Make gender reassignment a reserved matter, preventing devolved parliaments such as in Scotland from legislating to introduce Self-ID, ensuring that the continuing operation of the s35 Order blocking the GRR Bill.
What this proposal will not do:
- Remove the protected characteristic of gender reassignment.
- Make it lawful to discriminate on the basis of gender reassignment in the provision of goods & services, employment, or housing.
- Prevent services from offering a trans-inclusive service where proportionate.
- Require a new analysis of biological sex. The common law position will be reverted to and there are decades of caselaw on how to define biological sex in law.
I'm away at the moment so won't be responding very frequently. This post was a break from my holiday and I'm getting back to it now!
https://x.com/michaelpforan/status/1797558913698582579