The Section 35 Order, Part Two: All About Sex
This is the second part of a series of posts analysing the UK Government’s Statement of Reasons for issuing a Section 35 Order and blocking the Scottish Parliament’s Gender Recognition Reform Bill (GRR). The first part analysed the implications for the UK’s constitution and the balance of power between Westminster and Holyrood. This part will look at the interaction between the Gender Recognition Act 2004 (GRA), which the GRR Bill modifies, and the Equality Act 2010 (EA). This interaction is at the heart of the Statement of Reasons, and is likely to be key to a future court case. While I have no legal training (see the previous post for full disclaimers on this), this is a subject I’ve written about academically.
This post does not go into detail about each argument in the Statement of Reasons. Instead, it provides the legal background to those arguments, and lays the groundwork for making some criticisms of those arguments. Something I’m interested in doing is thinking through these interactions from a trans perspective. Too often, discussion of these issues and laws takes the cis perspective: we ask what cis people might need when interacting with us. Instead, my starting point for thinking through equalities law is asking what trans people need. Doing this helps us better understand the law — and justice.
How Does the Equality Act Work?
The Equality Act 2010 makes it illegal to discriminate against someone who has a protected characteristic. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. While there is difference in the details between each of these, the purpose of the EA is broadly the same: to prevent discrimination.
“Sex” in the Equality Act is not defined except to say that someone is either a man or a woman. This means that the definition of “sex” in UK law rests on case law (legal cases in which tests to determine someone’s sex have been made) and on references to sex in other laws, one of which is the Gender Recognition Act 2004. This also means that UK equalities law currently has no means of recognising non-binary gender as a gender: there is no straightforward way under the Equality Act of suing someone for discriminating against you because you are not a man or a woman.
“Gender reassignment” in the Equality Act is defined very broadly: it applies to someone who “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”. That is, you can sue someone for discriminating against you because you are trans. The EA uses “transsexual” as an adjective to describe people who have the protected characteristic of “gender reassignment”, but this applies whatever flavour of trans you are, and wherever you are in the process of being trans, from the first moment you say you’re going to do anything to trans your gender, whether that’s changing your name, updating your legal documents or taking hormones. This does include non-binary people, who can’t sue for being discriminated against for not being a man or a woman, but can sue for being discriminated against for being trans, as confirmed by Taylor v Jaguar Land Rover 2018. In the UK, in legal terms, all non-binary people are transsexual.
The Equality Act also includes numerous “exceptions”: situations where it says you are allowed to discriminate against someone. This is precisely what allows for women-only services, which are a form of allowed discrimination against men. Thus, the exception from sex discrimination enables the provision of single-sex services.
There are also exceptions from gender reassignment discrimination: situations where you are allowed to prevent trans people from accessing your service. This is allowed when it is a “proportionate means of achieving a legitimate aim” regarding single-sex services. There is a very important distinction to make here: you can exclude trans people from a single-sex service, if it’s proportionate and legitimate, because they are trans (that is, because they have the protected characteristic of gender reassignment). You can’t exclude a trans woman with a GRC from a single sex service because she’s a man (she isn’t, as we’ll discuss below), but you could, if you can justify it, exclude her because she’s trans. If she doesn’t have a GRC, the situation is more ambiguous, which is the situation at the heart of the Statement of Reasons.
What Does the Gender Recognition Act Do?
The Gender Recognition Act 2004 created a system for trans people to change the sex on their birth certificate. This sex is also used to determine how a trans person is referred to in some other areas of law, including marriage, death and taxes.
Indeed, the GRA makes it clear that when a trans person has a Gender Recognition Certificate (GRC), their “gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman) [emphasis mine]”. I’ll take a moment to note here that this section shows how “gender” and “sex” are used interchangeably in British law, which is also how I am using them in this post: nothing of legal consequence is meant by using one or the other.
A Gender Recognition Certificate does not determine how a trans person is referred to in all areas of law and life. For example, it is not a prerequisite for changing the name and gender on your bank account, your driving license, or your school register, or in almost every other area of daily life. One of the more important areas it does not affect is passports: you do not need a GRC to change the sex on your passport. This means that a trans person can go about their daily life as their acquired sex without ever needing a GRC; indeed, our most important forms of state ID will refer to trans people by their acquired sex. This is why the majority of trans people do not have GRCs, and why GRC possession says nothing about the seriousness of their transition: we simply don’t need them for most things. Some trans people choose not to get a GRC for political reasons, such as not wanting to be in the “Gender Recognition Register”— a state-managed list of everyone who has a GRC that was also created by the GRA.
It is also important to know that while the GRA requires a panel assessment and diagnosis of gender dysphoria, it does not require any particular medical procedures to have taken place for a Gender Recognition Certificate (GRC) to be granted. A GRC cannot tell you anything about the life and body of the trans person who has one, except that they have one.
What Sex Do Trans People Have?
Apart from the obvious answers of “lots” and “the good kind”, the most honest answer here is “we don’t always know”. What sex trans people have for the purpose of equalities law is not a settled matter for all cases.
We know for certain that a trans person with a GRC is their sex “for all purposes”, including equalities law. This was clear in the GRA itself, and was made more clear still by the judicial review ruling on the Gender Representation on Public Boards (Scotland) Act 2018. For this reason, it is commonly claimed that a birth certificate, including when it is updated by a GRC, determines ones “legal sex” in all cases. However, as mentioned above, a birth certificate does not determine the sex on, for example, a trans person’s passport. From a trans perspective, it seems absurd to say that someone who is living as a woman, who is referred to as a woman in every area of her daily life, by everyone in her life, including on her passport, is not a woman for most purposes. Indeed, previous case law has shown that we have not drawn a clear legal line about when exactly a trans person becomes their acquired sex for different legal purposes. I discussed this in detail in 2019: the section “What is legal sex?” in that post goes into as much of the existing case law as was then available. From that post, here is a discussion of some of the relevant case law, quoted for the purposes of showing how ambiguous “legal sex” can be in different areas of law. The reference to “Corbett” is to an earlier case which set a legal test for trans people’s sex for the purposes of marriage law. Content note: this quotation discusses the law around rape.
Further case law illustrates the points that (1) there is no general legal definition of sex, and that (2) the definition of sex varies depending on the area of law. Against my argument, Regina v Tan 1983 extended the Corbett ruling to also be relevant to the regulation of sex work, ruling that chromosomal, genital and gonadal factors only were relevant to whether or not someone is a man for the purposes of a conviction for living on the earnings of prostitution. (Feminists may also wish to note the homophobic judgements and language in this ruling.) For my argument, W v W 2000 argued that “on the true construction of the Matrimonial Causes Act, greater emphasis could be placed on gender rather than sex” (i.e. that psychological and social factors could be relevant to sex in the case of marriage) but did not require this to be true in order to make a ruling: the ruling concerned an intersex woman who was assigned-male-at-birth, and whose chromosomal and gonadal factors were classified as male under Corbett, but whose genital, hormonal and social factors were not. (Again, feminists should also note how attempting to extend Corbett has dangerous effects for intersex people, and that “birth certificate sex” is not sufficient.) Finally, as a further indication of the interpretability of sex for legal purposes, R v John Matthews ruled that a trans woman’s vagina is legally a vagina for the purposes of rape law, even though the Corbett ruling established (though may no longer still do so) that a trans woman’s vagina is not a vagina for the purposes of marriage law.
These cases make clear how the legal definition of sex has been used as a weapon against trans women, counter to the interests of justice: lawyers were arguing to make it easier to prosecute us for sex work, easier to divorce us, harder to defend us from rape. Establishing trans status as a protected characteristic in the Equality Act gave us some legal footing to defend us from discrimination, and also established in statute the idea that we also deserve justice. This concept ensures that future legal cases have to consider our needs and legal interests on an equal footing.
A hypothetical discrimination case makes the importance of the definition of trans people’s sex for equality law. Let’s imagine a trans woman who has been living as a woman for many years and who is referred to as a woman in all areas of her life, but who does not have a GRC. She gets a new job, and does not disclose her trans status to her employer: indeed, no-one in the office knows she is trans. (Most trans people will know someone in this situation.) Her boss begins making misogynist comments around her, and she begins to feel uncomfortable in the workplace, but decides to stick it out in the job and do the best she can. Two years later, two men who were hired at the same time as her, who both have very similar experience to her, have been promoted, and she has not. She’s had enough, and decides to sue the company for sex-based discrimination. In the process of the court case, her despicable boss hires a private investigator who discovers that she is a trans woman who does not have a GRC. Her employer uses this as a defence: we could not have discriminated against her as a woman because she is legally a man.
If a birth certificate is both necessary and sufficient for determining legal sex, there’s nothing our heroine can do. Well, almost nothing. Happily, the Equality Act makes some provision for situations like this: you can be discriminated against because someone perceives you have a protected characteristic, whether or not you actually have it. Our heroine’s lawyer shifts tactics to argue on this basis: she might not be legally a woman, but you thought she was, and that’s why you passed her over for promotion. Our heroine grits her teeth, but she wants to win. “Oh no, we all knew she was really a man,” lies the evil boss. “We were just too polite to say.” Awful, but all is not yet lost: our heroine withdraws her original case, but now sues on new grounds: they didn’t discriminate against her for being a woman, but they did discriminate against her for being trans. The evil boss cracks a smile. “No, not at all. One of your colleagues, one who was hired at the same time as you: he’s trans. He has a Gender Recognition Certificate, by the way.”
This case is no more speculative than the imagined cases in the Statement of Reasons. It illustrates why it’s important for equality law, and in the interests of justice, that trans people should be considered their acquired sex whether or not they have a GRC. Whether this argument would actually succeed in court I cannot say, but, given that case law has not definitively determined the issue, I would say it is arguable: I at least have reasonable grounds. Illustrating these ambiguities is important in criticising the Statement of Reasons, which suggests — I think falsely — that a trans person without a GRC is never already their acquired sex.
Remember from Part One that while the UK Government need only prove it has reasonable grounds to believe the GRR Bill has adverse effects on the operation of the law as it applies to reserved matters, it must prove that the GRR Bill does modify, in strict legal fact, the law itself as it applies to reserved matters. The question of whether or not the GRR Bill does modify the definition of “sex” for the purposes of equalities law is a key question in determining whether the law itself as it applies to reserved matters has been modified. This means that the kind of arguments I have discussed here may well be central to the court case around Section 35. That is, a judge could make a ruling in this case which settles the question of trans people’s sex under equalities law, and this could have far-reaching consequences for trans people’s rights under equalities law. I am less concerned with what effect it will have on trans people’s ability to access single-sex services (as explained below), and more concerned with our ability to seek justice for discrimination against us because of our acquired sex — because that is the sex we live in.
How Can You Discriminate Against Trans People?
This ambiguity around what “legal sex” in equalities law is is also one reason why, in actuality, it is much more likely that a single-sex service that wants to discriminate against trans people would justify this by an exception from gender reassignment discrimination rather than by an exception from sex discrimination. To exclude a trans woman for being a man, you would first have to prove that she is a man, which is, as discussed, by no means clear in law — and besides, this would only work for trans women who do not have GRCs. To exclude all trans women, which presumably such a provider would want to do, they would have to argue for the exception from gender reassignment discrimination, and thus that they have using a “proportionate means of achieving a legitimate aim”.
There is very little case law to refer to in determining the bounds proportionality and legitimacy in “proportionate means of achieving a legitimate aim”. As will be familiar from my last post, the exact bars for terms like these are both complex and consequential. Because there have been few if any rulings in which a single-sex service provider has been sued for excluding a trans person and won, we do not have many examples of what such means and aims would look like. The best existing guide to what this looks like is the EHRC’s Statutory Code of Practice, which has legal force (i.e. it can be used as a defence in court) and which sets very high bars for proportionality and legitimacy in gender reassignment cases. Since the overhaul of the EHRC under recent governments, the EHRC has issued further guidance which sets lower bars, confusing this issue, but this is non-statutory, should not be used as a defence in court, and has a range of other legal problems, as discussed by Robin Moira White.
I titled this section deliberately. In the discussion around the Statement of Reasons, and around the Gender Recognition Reform generally, trans people have been put in the position of saying “it’s alright, you can still discriminate against us”. While this is legally true, and its legal truth is important to criticising the Statement of Reasons, I also want to suggest that we should be working to shift the ground of this kind of argument. The Section 35 Order is the culmination of a years-long campaign to instill in the public that it is right and good to discriminate against trans people. The Statement of Reasons argues that it should be easier to discriminate against us. We need to fight back not only with the legal fact that we can be discriminated against, but also with the moral argument that we should not be discriminated against.
How Does All This Show Up in the Statement of Reasons?
As I discussed in Part One, the Statement of Reasons for the Section 35 Order argues that the Gender Recognition Reform Bill has altered the meaning of “sex” in the Equality Act 2010, a reserved matter, and has also altered the operation of equalities law generally by widening the category of people who can access a Gender Recognition Certificate.
The broad argument I have been making here makes two claims:
- (a) That making it easier to access a GRC does not necessarily alter the meaning of “sex” for the purpose of equalities law: at the very least, this is an open question.
- (b) That whether or not the meaning of “sex” has been altered, it is irrelevant for the majority of the situations discussed in the Statement of Reasons, because discrimination against trans people is more likely to be justified by an exception from gender reassignment discrimination than by an exception from sex discrimination.
In Part One, I showed that the UK Government must prove that the GRR Bill both makes “modifications of the law as it applies to reserved matters” and has, as believed on on reasonable grounds, “an adverse effect on the operation of the law as it applies to reserved matters”. My argument in (a) is that the GRR Bill does not necessarily modify the law as it applies to the reserved matter of equal opportunities, because a GRC does not necessarily determine sex in equalities law; my argument in (b) is that even if the Bill does modify “sex”, this does not adversely affect equal opportunities, because excluding trans people is done on an exception from gender reassignment discrimination rather than sex discrimination.
Of course, I’m just a writer and campaigner without legal experience, so I hardly think that my making such arguments can have a practical effect. (That’s the reason I won’t be debating them in the comments.) I’m making these arguments so that other people reading this, particularly trans people, can have a better understanding of the relevant law and what might be argued in the court case around Section 35, and also what the implications for our rights might be.
The next post will, finally, examine the arguments in Section 35 in detail, applying what we’ve discussed and outlining the case against the Statement of Reasons. As with this post, I will be arguing from a trans perspective, showing what it looks like to read these arguments with the interests of trans people in mind. We deserve understanding, we deserve freedom from discrimination, and we deserve justice.
A Note on Comments
Corrections of fact and points of information on the relevant law are very welcome. I will not be engaging in debate. Abuse, prejudice and trolling will be deleted.
