Trans people in the UK could face a significant rollback of rights if proposals made this week by the Equality and Human Rights Commission (EHRC) to redefine ‘sex’ in the landmark Equality Act are adopted by the government.

The EHRC wrote to the government on Tuesday suggesting it should end rights and protections based on a person’s legal sex and instead base them on ‘biological sex’ for the purposes of the act, which came into force in 2010.

The letter does not in itself change any laws. But it is likely that the government will seek to press ahead with its recommendations, which were made after a request for guidance from the minister for women and equalities, Kemi Badenoch.

Doing so could result in a breach of both domestic and international human rights obligations in Britain.

What is the EHRC?

The EHRC was set up to ensure the UK complies with international human rights standards. But this purpose is seriously undermined by the fact its commissioners – who decide the direction of the organisation – are political appointments.

Over the last few years, the government has ensured appointments to the EHRC reflect its political agenda. This was highlighted in a letter raising concerns about the independence of the EHRC to the Global Alliance of National Human Rights Institutions (GANHRI) in June 2022, sent by Stonewall and Disabled People Against Cuts on behalf of 26 LGBTQ+ charities and allies.

The letter sounded the alarm about a 2020 speech made by Liz Truss, then the women and equalities minister, in which she appeared to say she was making appointments to the EHRC to ensure its work reflected the government’s political agenda. She criticised what she called “groupthink” and “virtue signalling” – both familiar right-wing talking points – and claimed:

“Too often, the equality debate has been dominated by a small number of unrepresentative voices, and by those who believe people are defined by their protected characteristic and not by their individual character. This school of thought says that if you are not from an ‘oppressed group’ then you are not entitled to an opinion and that this debate is not for you. I wholeheartedly reject this approach… That is why I am appointing a new chair and a wide variety of commissioners to the Equality and Human Rights Commission.”

The charities’ letter claimed the new commissioners “often adhere to regressive views which align with the government’s, but which are out of step with the vast majority of equalities and human rights bodies”.

Although GANHRI did not recommend downgrading the EHRC’s international ‘A’-grade accreditation in response, it made several pointed comments about the EHRC’s failures in a subsequent report, saying the process for appointments was “not sufficiently broad and transparent”, and that the EHRC was insufficiently plural.

Most damningly, the report insisted that the EHRC “take visible and clear steps to strengthen its working relationship with civil society organizations, including organizations that work to promote and protect the human rights of LGBTI people, migrants and asylum seekers, persons with disabilities and organizations working on racial discrimination”.

Despite this, the EHRC has continued to operate in a way antithetical to its purpose of protecting human rights. This week, a Trans Safety Network investigation revealed the significant extent to which the EHRC has been ‘captured’ by the anti-trans right. Multiple former employees have alleged that opposing trans rights has become an institutional priority for the EHRC.

As well as alleged resignations by staffers in response, two former legal directors have publicly decried the organisation’s apparent abandonment of the human rights values it is supposed to uphold. One, Grey Collier, has condemned the EHRC for lacking independence, not upholding human rights for everyone, and failing to understand the law, while a second, Elizabeth Prochaska, accused it of endangering trans people.

Given all this, it is perhaps unsurprising that the EHRC made this week’s recommendation. But we must not underestimate the extent to which such a change would harm trans people, and represent an abandonment of human rights norms.

What changing the Equality Act 2010 would mean

Under the current law, upon acquisition of a Gender Recognition Certificate (GRC), a trans person becomes their ‘acquired’ sex for all legal purposes. There is no distinction between sex and gender in UK law.

The proposal made in the letter from the EHRC is that, for the purposes of the Equality Act 2010, the term ‘sex’ be defined as ‘biological sex’, rather than its current definition of legal sex (ie what is recorded on your birth certificate, either at birth or as amended by a GRC).

The term ‘biological sex’ has no coherent definition in law. The leading case on the legal definition of sex, and of ‘biological sex’, is known as Corbett v Corbett, a divorce case from 1969. The judge, Roger Ormrod, identified three components of ‘biological sex’ that are to be determined at birth and cannot be altered, even by subsequent surgical intervention. These components are chromosomal, gonadal and genital.

Trouble is, these components do not always exclusively point towards either ‘male’ or ‘female’. They may be inconsistent or ambiguous. It is thus impossible to conclusively determine a person’s ‘biological sex’ based on any one of these characteristics alone. This is why the concept of ‘legal sex’ was developed.

The EHRC’s suggestion that we define sex using so-called ‘biological sex’ is likely to amount to the same process that currently applies to legal sex – whatever is recorded on the birth certificate – but with the deliberate disapplication of the Gender Recognition Act.

The group’s letter to the government gives several examples of how the EHRC envisions this would apply in practice. Any single-sex women’s space (such as a hospital ward), women’s association (such as a book club for women) or lesbian association would be allowed to exclude trans women automatically. The letter states that the current illegality of doing so “impact[s] on freedom of association for lesbians”. To support this point, the EHRC cites ‘FiLiA’, a campaign group that runs an annual conference promoting so-called ‘gender critical’ ideas.

This is despite the fact that trans lesbians are simply a subcategory of lesbians, much like (for instance) disabled lesbians. There is no more reason to create a provision to allow associations to discriminate against trans lesbians than there would be for any other group of lesbians.

In line with most equality frameworks, the current law allows discrimination against trans people – excluding them from (say) single-sex sports competitions – if this can be shown to be a proportionate means of achieving a legitimate aim. Instead, the letter says, the law should change so that no balancing exercise need be undertaken at all – in other words, it recommends that trans people should be discriminated against to exclude them from single-sex spaces for any motivation whatsoever, on a purely arbitrary basis. Service providers may even be obligated to exclude trans women.

What’s more, trans women would immediately lose access to certain mechanisms under the Equality Act 2010 that seek to address gender discrimination – for example, equal pay legislation. Yet trans women live in the world as women, and experience misogyny. Indeed, one piece of US research suggests that trans women earn 60% less than the average wage.

The EHRC’s proposed amendment to the Equality Act would strip the Gender Recognition Act of most of its substantive content, allowing trans people with a Gender Recognition Certificate to be treated as the sex they were assigned at birth. It is important to note that the GRA was introduced in order to fulfil international human rights obligations, as decided by the European Court of Human Rights in 2002 in a case known as Goodwin v UK.

In this case, it was determined that the UK’s then failure to recognise trans people’s legal gender fully, placing them instead in an “intermediate zone as not quite one gender or the other”, was a violation of Article 8 of the European Convention on Human Rights, namely the right to “establish details of their identity” and to have such identity respected.

The EHRC claims that Article 8 only protects ‘simply a right of recognition’ – but this doesn’t reflect the European court’s decision. In deciding the outcome of Goodwin v UK, the court emphasised the harm that would arise from being treated one way under the law and another in one’s personal life: “A conflict between social reality and law arises which places the [trans person] in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety.”

It is clear that an attempt to treat trans people, for the purposes of the Equality Act 2010, purely as the sex they were assigned at birth would violate the protection they are afforded by Article 8, as outlined in Goodwin v UK. It would exclude a trans person from the services and equality law designed to protect their lived gender, forcing them into the ‘intermediate zone’ described by the court.

This is especially true when such acts of discrimination would be allowed automatically, without even any weighing of individual situations, as part of a clear attempt to erase trans rights and trans existence, as part of a broader reactionary political agenda.

Does the letter matter?

The letter, as it stands, has no legal effect.

But given how important the ‘trans issue’ is to members of Rishi Sunak’s cabinet, such as Kemi Badenoch, as well as to the Conservatives’ broader culture war election strategy, we can expect to see concerted attempts to implement it.

The government has indicated that it intends to amend the Equality Act 2010 through a ‘statutory instrument’ – a special kind of legislation that can be passed without Parliament’s approval. Legal experts such as Jo Maugham have argued that the effect of the proposed amendment would be so significant that it may be unlawful to do it this way, meaning it would require ‘primary legislation’ – a new bill to be voted on – but this is unlikely to be an obstacle given the government’s agenda, and Labour’s indication that it supports “clarification” of the Equality Act.

Even without this, it is important not to underestimate the non-legislative effects of such a letter. The law has an important communicative function – what people believe the law to be is often more important than what the law actually is on paper. Trans activists are rightly concerned that this letter will embolden individuals to engage in transphobic violence against trans people in public single-sex spaces.

It is also important to view this letter in the broader context of growing hostility towards trans people, and other attempts to exclude trans people from single-sex spaces, such as the notorious bathroom bills in the US. Regardless of whether the letter becomes law, it signals a growing confidence to abandon human rights principles in order to further attack the trans community.