A controversial attempt to overhaul one of the hallmark pieces of equalities law is being considered by ministers.
As they prepare to press ahead with a lengthy and convoluted process, we examine what the reforms would mean for trans people and those advocating for sex-based rights, as well as the motivations behind the move.
What do ministers want to do?
A significant change to the 2010 Equality Act is being pursued by the government, which would redefine “sex” to refer specifically to a person’s sex at birth. That would be designed to make it legal for those who are transgender to be banned from single-sex spaces and events, such as book groups and hospital wards.
Currently, trans people can have their identity formally recognised by applying for a gender recognition certificate. This affirms their gender change in law, allowing them to update their birth or adoption certificate and have their gender recognised on a marriage or death certificate.
That process is not expected to change, but the equalities minister, Kemi Badenoch, wants to make a clearer distinction in law between those who are born a particular sex and those who transition or identify as a gender different from their birth one.
This is a complicated thing to do, so Badenoch wrote to the Equality and Human Rights Commission seeking its advice.
She said there was “increasing contestation” about “how the term sex is understood in law and in practice” and that there were “legitimate questions” about the current definition under the Equality Act.
Badenoch acknowledged that such a change would involve “advantages and disadvantages” for affected groups, so wanted the UK’s human rights watchdog to give its verdict on the implications of such a move.
No 10 has suggested it will push ahead, though the EHRC’s advice that there should be further consideration suggests the change may take considerable time to enact.
What would be the impact?
Those who advocate for sex-based rights say it would affirm hard-fought protections for those who are born biologically female. But the impact on trans people would probably be detrimental.
The EHRC said itself that their legal protection from discrimination “may be unclear” given the difficulties of policing any kind of change in the law.
In a letter to the government published this week, the body said that if trans women were banned from spaces or services for those born biologically female, “in practice, trans people are unlikely to be required to provide proof of their legal status”.
Critics of changing the Equality Act also say trans people would feel they were being targeted, with the potential for real-world hostility towards them rising.
Why is this happening?
Badenoch has said that part of her reason for intervening was the recent decision by the UK government to block a bill passed by the Scottish parliament that was designed to make it easier for transgender people to obtain official gender recognition certificates.
She said there were concerns the legislation would adversely affect the operation of the Equality Act, which applies in England, Scotland and Wales.
A recent petition, which was signed by 107,000 people and called for the act to make clear “sex” related to biological sex and not someone’s gender, was also referred to by Badenoch.
It is true, as well, that norms to do with gender identity have changed much since 2010.
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The EHRC said over the past 13 years, “society has evolved considerably in matters relating to the two protected characteristics of sex and gender reassignment” and that the original act uses the two terms interchangeably.
Changing the Equality Act would also mark the delivery of a promise made by Sunak last summer.
When Sunak first ran for the Tory leadership, his campaign said he would ensure “women’s sports and services are protected and clarify that self-ID does not have legal force” by amending the act to make clear “that sex means biological sex”.
How would it come into force?
Updating the current law, which was passed by Gordon Brown’s government, would probably require fresh primary legislation.
This could either come in the form of a separate new bill, or be contained within another bill – if any relevant ones are planned before the next general election.
Legal wrangling and inevitable court battles mean that even if the change was made before 2025, it could be months or even years before the issue is resolved.
Instead, the Conservative party may keep the possibility of amending the Equality Act dangling – turning it into an election campaign pledge.
This would both serve as an enticement to its more socially conservative voters who have become somewhat disillusioned with the party, and keep focus on an issue that has become uncomfortable territory for the Labour party.
Could there be other motivations at play?
Some Tories believe the push for sex-based rights is not just the right thing to do but ripe for electoral exploitation. Badenoch is one of those unafraid to push persistently on social issues such as gender and race.
Some MPs believe she has one eye on building support among the right of the party – both in parliament and among the membership – in anticipation of another run for the leadership when there is next a vacancy.
