UK Reform of Gender Recognition and the Commission for Equality and Human Rights
The UK Government’s consultation on reforming the Gender Recognition Act 2004 proposes making it easier for trans people to change legal sex or gender. Commentary supporting reform has relied upon the Commission for Equality and Human Rights’ longstanding guidance on the Equality Act 2010. But the Commission’s consultation response is inconsistent with that advice. Their response also overlooks the practical implications of reform for single-sex services.
The Equality Act contains prohibitions on sex discrimination, and also discrimination against those possessing the protected characteristic of gender re-assignment, described in the Act as “transsexuals”. The Act permits, in limited circumstances, both the provision of single-sex services and the exclusion of transsexuals from those services.
A person can change their sex as a matter of law by obtaining a gender recognition certificate (GRC) under the Gender Recognition Act. But a person can be a transsexual under the Equality Act without having a GRC. The Act defines a transsexual person as a person “with the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. Protection under the Act is not based on having obtained a GRC.
The Commission’s guidance (last updated in October 2018) states (at p. 17):
“Generally, a business which is providing … single-sex services should treat a transsexual person according to the sex in which the transsexual person presents (as opposed to the sex recorded at birth), as it is unlawful to discriminate against someone because of gender reassignment” (emphasis added).
This is in line with the Commission’s statutory Code of Practice (published in 2011) (para. 13.57).
This advice has been relied upon in commentary supporting reforms to make it easier to obtain a GRC. Finlayson, et al, arguing that reform will be of limited effect, state that the Equality Act: “already allows trans people to use the facilities and services that best align with their gender identity in almost all cases”, citing the Code of Practice.
However, the implications of the Commission’s consultation response contradict their guidance. Their response states:
“15. Individuals are treated under the sex discrimination provisions of the EA 2010 in line with their legal sex. Thus, a trans person with a GRC is treated as having the sex recorded on their GRC (and new birth certificate), while a trans person without a GRC is treated as having the sex recorded on their birth certificate. In both cases, they are protected from discrimination because of gender reassignment.” (emphasis added)
If the Commission’s consultation response is correct, they cannot be correct in their guidance.
A person with the protected characteristic of gender reassignment (a transsexual) is protected against less favourable treatment because of that protected characteristic. That person’s sex according to law is unaffected. Consider a transsexual without a GRC whose birth certificate records that person as being male. Suppose that person is denied access to a single-sex service (such as a women’s refuge from domestic violence) on the basis that the person is not female. That person cannot be compared to a non-transsexual woman, because the person being denied a service is not legally a woman. That person is treated no worse than a non-transsexual man. Thus, the less favourable treatment is on account of sex, not gender reassignment. The single-sex service provider has no obligation to serve that person. Indeed, to do so would be inconsistent with the single-sex nature of their service.
The Commission recommend that reform be accompanied by “clear practical guidance” (para. 87). But their response shows that the Commission’s guidance is already wanting.
The Commission’s response later asserts that the Equality Act provisions on single-sex services “will continue to operate as they do now following reform of the GRA” (para. 81). But this overlooks the significance of possessing a GRC for inclusion in or exclusion from single-sex services. No justification is required to exclude trans persons not holding a GRC from single-sex services beyond them not being (as a matter of law) the sex for whom the service is dedicated. But separate justification is required for excluding GRC holders, because their GRC alters their legal sex. Thus, relaxing the conditions for obtaining a GRC necessarily affects who can access single-sex services. The more accessible GRC certificate are, the more access transsexual people will have to single-sex services. This is an important point which ought to be understood in the debate about reform.