Clarifying the definition of ‘sex’ in the Equality Act
On 21 February 2023, the Minister for Women and Equalities asked for our advice on the definition of the protected characteristic of sex in the Equality Act 2010.
Section 11 of the Equality Act 2006 allows the Equality and Human Rights Commission (EHRC) to advise the UK Government on the effectiveness of equality law.
The EHRC’s initial response to this request is set out in a letter sent to the Minister on 3 April 2023.
Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission said:
“A change to the Equality Act 2010, so that the protected characteristic of ‘sex’ means biological sex, could bring clarity in a number of areas, but potential ambiguity in others.
“Our response to the Minister’s request for advice suggests that the UK Government carefully identify and consider the potential implications of this change.
“Should they wish to pursue work in this area, we recommend detailed policy and legal analysis be undertaken, in compliance with the Public Sector Equality Duty and with due regard to any possible disadvantages for trans men and trans women.
“There is a clear need to move the public debate on issues of sex and gender to a more informed and constructive basis. This would be welcomed by the many who do not take the polarised positions currently driving public debate.
“We look forward to working with the government and others to find a way forward on these important issues, but recognise that these decisions sit with the UK Government and UK Parliament.”