Ministers could stop trans women from accessing single-sex hospital wards and competing against biological women in sport with overhaul of the Equality Act

• Kemi Badenoch considering a move to make clear ‘sex’ refers to ‘biological sex’

Ministers are considering updating equalities law in a move that could stop trans women from accessing women’s-only hospital wards and competing in women’s sports.

Kemi Badenoch, the women and equalities minister, has written to Britain’s equalities watchdog about updating legislation to make clear that ‘sex’ refers to ‘biological sex’.

She asked for the Equality and Human Rights Commission’s ‘considered advice of the benefits or otherwise’ of re-writing the 2010 Equality Act.

In their reply to the Cabinet minister, the EHRC have said such a move could ‘bring clarity in a number of areas’ and ‘merits further consideration’.

In a 19-page letter to Ms Badenoch, EHRC chair Baroness Kishwer Falkner identified eight areas where updating the Equality Act could bring benefits.

This includes in the employment of staff in safe spaces such as women’s or girls’ hostels, the use of women’s-only wards in hospitals, and the exclusion of trans women from women’s sports.

Kemi Badenoch, the women and equalities minister, has written to Britain’s equalities watchdog about updating legislation to make clear that ‘sex’ refers to ‘biological sex’.

In a 19-page reply to Ms Badenoch, Equality and Human Rights Commission chair Baroness Kishwer Falkner identified eight areas where updating the Equality Act could bring benefits

The EHRC said updating the law could bring clarity over the use of women’s-only wards in hospitals, as well as the exclusion of trans women from women’s sports

Ms Badenoch wrote to the EHRC on 21 February and cited recent legal cases that had ‘raised legitimate questions about the definition of sex in the Equality Act’.

She also highlighted how the Scottish Parliament recently passed controversial new gender identity legislation, which Prime Minister Rishi Sunak has since vowed to block from actually becoming law.

‘I would like your considered advice of the benefits or otherwise of an amendment to the 2010 Act on the current definition of “sex”, along with any connected or consequential enactments,’ Ms Badenoch wrote.

In her reply, which was sent yesterday, Baroness Falkner acknowledged since the passing of the 2010 Act that ‘society has evolved considerably in matters relating to the two protected characteristics of sex and gender reassignment’, including over language.

‘There is no straightforward balance, but we have come to the view that if “sex” is defined as biological sex for the purposes of Equality Act, this would bring greater legal clarity in eight areas,’ she added.

On women’s-only wards, the EHRC chair wrote: ‘At present, the starting point is that a trans woman with a GRC (Gender Recognition Certificate) can access a “women-only” service.

‘The service provider would have to conduct a careful balancing exercise to justify excluding all trans women.

‘A biological definition of sex would make it simpler to make a women’s-only ward a space for biological women.’

And on women’s sports, she added: ‘At present, to exclude trans women with a GRC from women’s sports, the organiser must show that it was necessary to do so in the interests of fairness or safety.

‘A biological definition of sex would mean that organisers could exclude trans women from women’s sport without this additional burden.’

Ms Badenoch wrote to the EHRC on 21 February and cited recent legal cases that had ‘raised legitimate questions about the definition of sex in the Equality Act’

But Baroness Falkner also warned of three areas where a change to the Equality Act ‘would be more ambiguous or potentially disadvantageous’.

She listed these as provisions on equal pay, direct sex discrimination, and indirect sex discrimination.

‘At present, a trans woman with a GRC can bring an equal pay claim by citing a legally male comparator who was paid more. A trans man with a GRC could not,’ the EHRC chair wrote.

‘The proposed biological definition would reverse this situation. The effect would be to transfer this right from some trans women to some trans men.’  

Baroness Falkner agreed that a change to the Equality Act to redefine ‘sex’ to mean ‘biological sex’ was an issue that ‘merits further consideration’.

She added it would ‘would create rationalisations, simplifications, clarity and/or reductions in risk for maternity services, providers and users of other services, gay and lesbian associations, sports organisers and employers’.

The EHRC chair also highlighted ‘a clear need to move the public debate on these issues 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,’ she added.

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