Redefining sex definition could make law on women-only spaces clearer, says EHRC

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Amending the definition of sex under the Equality Act could result in “greater legal clarity” around women-only spaces and access to sport, a human rights watchdog has said.

The Equality and Human Rights Commission (EHRC) was asked by a Government minister to consider the benefits or drawbacks of an amendment to the 2010 Act to make it “biological sex”.

Women and equalities minister Kemi Badenoch wrote to the body in February to ask for their consideration about whether the definition of sex is “sufficiently clear and strikes the appropriate balance of interests between different protected characteristics”.

The EHRC said it had considered the issue and while it found “no straightforward balance” it had “come to the view that if ‘sex’ is defined as biological sex for the purposes of EqA (Equality Act), this would bring greater legal clarity in eight areas”.

Among these were hospital wards, with the EHRC saying that a “biological definition of sex would make it simpler to make a women’s-only ward a space for biological women”.

On the subject of sport, the organisation said a biological definition of sex “would mean that organisers could exclude trans women from women’s sport without this additional burden” of having to show it was necessary to do so in the interests of fairness or safety.

The EHRC said a change in the definition could be “more ambiguous or potentially disadvantageous” when it comes to equal pay provisions, direct sex discrimination and indirect sex discrimination.

In conclusion it stated that the overall conversation on amending the definition warrants further discussion.

“It therefore merits further consideration.”

Baroness Kishwer Falkner, chairwoman of the Equality and Human Rights Commission, said there should be “due regard to any possible disadvantages for trans men and trans women”.

She said: “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.”

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