THE UK Government is considering a change to the legal definition of sex in the Equality Act. 

Kemi Badenoch tasked the Equalities and Human Rights Commission (EHRC) to look at the operation of the legislation after Holyrood passed the Gender Recognition Reform (Scotland) Bill.

In her letter to the watchdog, the Tory minister said there were concerns over “whether the definition of 'sex' is sufficiently clear and strikes the appropriate balance of interests between different protected characteristics.”

The Bill passed by MSPs before Christmas ends the need for a medical diagnosis for a Gender Recognition Certificate (GRC), cuts the waiting time from two years to six months, and lowers the eligibility age from 18 to 16.

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As it passed through parliament, ministers and supporters of the legislation insisted the proposed law interaction with the 2010 Equality Act was minimal.

However, that was disputed by lawyers who said a Court of Session ruling by Lady Haldane in mid-December made a significant difference to the operation of law. 

READ MORE: Court of Session Gender Recognition ruling could impact new law

Her judgment was that sex was “not limited to biological or birth sex”, and so someone born male obtaining a female GRC would be a woman as far as the law is concerned.

Ms Badenoch is now considering creating a legal distinction between people who were born female and those who had transitioned to become women.

In a letter to Baroness Falkner, chairwoman of the EHRC, the minister asked for her “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, bearing in mind the advantages and disadvantages that such a change might entail for affected groups.”

Responding, the peer said “society has evolved considerably” in the last 13 years. 

“For example, language has evolved: the Act refers to trans people as ‘transsexuals’, and uses the terms ‘sex’ and ‘gender’ at times interchangeably, with the requirement on employers to report ‘gender pay gaps’ in fact a duty to report on pay differences according to the protected characteristic of sex. 

"Moreover, many trans people today would not describe themselves as transitioning from one sex to the other, but rather as living with a more fluid gender identity or without reference to a binary gender identity at all. 

“Their legal protection in the Act may be unclear as in practice trans people are unlikely to be required to provide proof of their legal status except in unusual and uncommon situations.” 

READ MORE: Kemi Badenoch defends Section 35 over Gender Recognition Reform Bill

Baroness Falkner said if ‘sex’ is defined as biological sex for the purposes of Equality Act, this would “bring greater legal clarity” to a number of areas, including around single sex and separate sex services.

In her letter, the watchdog boss wrote: “Service providers are sometimes permitted to offer services to the sexes separately or to one sex only.

“ For instance, a hospital might run several women-onlywards. At present, the starting point is that a trans woman with a GRC 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.”

She also says the change could exclude trans women with a GRC from women’s sports. Currently, organisers must demonstrate that it was necessary to exclude trans women “in the interests of fairness or safety”.

However, she notes that the change would be “more ambiguous or potentially disadvantageous in three areas,” including equal pay claims, and sex discrimination. 

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At present, a trans woman with a GRC can bring a claim of direct sex discrimination as a woman. A trans man with a GRC could not. The proposed biological definition would reverse this situation. 

The effect would be to transfer the right from some trans women to some trans men, the EHRC warns. 

Baroness Falkner tells the minister: “On balance, we believe that redefining ‘sex’ in EqA to mean biological sex 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. It therefore merits further consideration."