Enquiries about a person’s sex and gender could be ‘justified’ according to the Equality and Human Rights Commission (EHRC) in the wake of the landmark judgment passed down by the Supreme Court.
Hospitals, sports clubs and leisure centres will be allowed to request birth certificates to ensure single-sex services are ‘protected’ but, warns the EHRC, it could be classed as discrimination if it was not approached in a sensitive way.
The EHRC has launched a public consultation on updates it has provisionally included in its guidance on applying the Equality Act following the Supreme Court’s ruling in the case of For Women Scotland (FWS) against the Scottish Government, which had sought to include transgender women with Gender Recognition Certificates (GRCs) in the legal definition of “woman” for public policy purposes. Summing up Lord Hodge stated:
“The unanimous decision of this court is that the definition of the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.
The EHRC held a 12 week consultation last year on revisions to the Code of Practice to reflect legislative updates made since it was first published in 2011. This latest consultation tackles the Supreme Court’s ruling and the practical application of it in the Code of Practice.
Alongside updating the definition of ‘legal sex’ which now states ‘Legal sex is the sex that was recorded at your birth’, the guidance updates the understanding of gender reassignment and establishes principles where the knowledge of someone’s legal sex is required to be able to ‘discharge their legal obligations under the Equality Act 2010.;
“Requests about birth sex are more likely to be justified where it is necessary and proportionate for a service provider, those exercising public functions or an association to know an individual’s birth sex… Any request that is made should be done in a sensitive way which does not cause discrimination or harassment.”
It also provides updated guidance discrimination in such scenarios as; trans men and pregnancy or maternity; women-only associations such as community and support groups, and competitive sport.
The updated guidance recommends organisations have a policy setting out ‘whether, and if so how, separate or single-sex services will be provided’; adding consideration should be given to ‘how the policy might apply in different circumstances to ensure consideration of all affected interests and provide transparency for service users.”
Baroness Kishwer Falkner, Chairwoman of the EHRC said as Britain’s equality regulator, it was the responsibility of the EHRC to ‘uphold and enforce’ the Equality Act
“That requires us to incorporate the Supreme Court’s ruling on the definition of ‘sex’ into our guidance and explain what it means to the duty-bearers who must put it into practice… It is important that our Code is both an accurate interpretation of the law and clear to those who use it. So we want to hear views on the clarity of these updates and urge all interested parties to respond to the consultation over the next six weeks. We will consider every response carefully and amend the draft Code where necessary.”
“This is a complex area of law, which bears on the rights of people with the protected characteristics of sex, sexual orientation and gender reassignment. We know that there are strongly held views across our society, both about how the law should be interpreted and whether it reflects the right balance between those rights. So if everybody’s rights are to be protected – as the Supreme Court confirmed the law intends – service providers and their legal advisors need help to navigate these challenges.”
The consultation will close on Monday 30 June 2025.
