Government aims to clarify the term ‘sex’ in the Equality Act

12 Apr 2023

The Minister for Women and Equalities has approached the Equality and Human Rights Commission (EHRC) for its advice on the definition of the protected characteristic of sex in the Equality Act 2010.

Section 11 of the Equality Act 2006 allows the EHRC to advise the UK government on the effectiveness of equality law.

The Minister’s letter read:

“In our meeting on 12 January, we discussed the increasing contestation of how the term sex in understood in law and in practice. Recent cases in both the English and Scottish Courts, such as Fair Play for Women Ltd. v UK Statistics Authority [2021] EWHC 940 and For Women Scotland Ltd [2022] CSOH 90, have raised legitimate questions about the definition of sex in the Equality Act 2010.

“Among these is the consideration about whether the definition of 'sex' is sufficiently clear and strikes the appropriate balance of interests between different protected characteristics. The Women and Equalities Select Committee discussed this in a recent evidence taking session and the matter has been the subject of a petition to Parliament advocating an update to the Equality Act to make clear that the characteristic of 'sex' refers to 'biological sex'.”

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.”