Question 19: Do you think that changes to the Gender Recognition Act will impact on areas of law and public services other than the Equality Act 2010?
[third draft, 14/10/18]
I think there will be an impact on all aspects of law and public services, if the law enshrines an identity-based model of sex, rather than a factual, biological model.
The belief that each person has an innate “gender identity”, that this is immutable, and that “gender identity” determines sex is by no means universally held in society at large. Many (perhaps most) people continue to accept the fact that biological sex is immutable and determined at conception.
In the absence of a specific definition, words in law must be taken to have their ordinary meaning. In any case, it was clearly not the intention of Parliament when the Equality Act was passed, that the meaning of “sex” should be taken to be something defined solely by a person’s internal sense of identity. If this had been the case, then none of the exceptions which permit discrimination against people with the protected characteristic of gender reassignment when providing single-sex or separate-sex services would have been included in the Act.
The Gender Recognition Act is a compromise between these two conflicting views. It permits a limited category of people to alter their legal sex, while recognising that in some circumstances the fact that they have done this (and therefore their biological sex) remains relevant.
A change to the criteria, so as to permit a change of legal sex on the basis of self-declaration alone would shift the balance of this law towards the belief that “gender identity” is the main determinant of sex.
I think this does not reflect the current prevailing view of most reasonable people. Case law is often decided with the use of the concept of a ‘reasonable person’. To have a belief written into statute which is not shared by a large proportion of the population could therefore lead to difficult, costly and painful court cases in which the conflict between law and fact is tested. I do not think this is necessary or desirable.
If there is to be a shift in this direction, then the rights of those people who sincerely hold a materialist view about the nature of sex and gender must be strongly protected. This is a sincerely held philosophical belief, and is therefore a protected characteristic under the Equality Act.
In order to assess the impact on women of any changes to the Gender Recognition Act, it will be important to continue to gather accurate statistics based on biological sex, as this is the basis on which they have been gathered up to now. Without accurate statistics, the government will be in dereliction of its public sector equality duty under the Equality Act, to promote good relationships between people with different protected characteristics. Sex remains a protected characteristic.