In their final head-to-head election debate, Keir Starmer and Rishi Sunak were asked how they would protect women’s rights and single-sex spaces. This has become a part of the wider discussion around transgender rights and identity, specifically whether trans women should have the right to access women-only spaces.
Sunak has vowed to change the Equality Act to clarify that under law, “sex means biological sex”. He said during the debate that this is necessary to protect single-sex spaces. Starmer, on the other hand, said that the Equality Act already provides the framework to protect single-sex spaces. Who is right?
Both agreed that men should not enter women’s single-sex spaces or access women’s services. The Equality Act 2010 does protect these spaces, such as group counselling for domestic abuse survivors, and technically allows for organisations to restrict these just to sex assigned at birth.
However, this does not mean an automatic ban on trans women using women-only services. Rather, each ban must have a legitimate reason for doing so. This could be challenged in UK civil courts by a claimant who believes they are being discriminated against, though there have been no higher level court cases challenging this.
The law does not allow men of any legal standing to use women’s spaces. This includes trans men, who were assigned female at birth and now hold a gender recognition certificate that legally recognises their sex as male.
The Equality Act does not explicitly state what a man or woman is, or cover non-binary identities. This has been left to the courts to decide. The issue of biological sex is due to be heard by the UK Supreme Court at the end of 2024, after a court case brought by the group For Women Scotland, related to gender balance on company boards, which the claimants said should not include trans women under the definition of women.
Lady Haldane ruled that the definition of sex was not limited to biological or birth sex, and would include trans people who have obtained a gender recognition certificate. For Women Scotland have appealed her decision, stating they want the UK Supreme Court to rule on whether sex means biological sex under UK law.
Also, completely left out of the discussion about trans women accessing women-only spaces are trans men. Any conception of biological sex in the Equality Act would, in effect, force transgender men to share spaces with women.
Defining and perceiving gender
Under the Equality Act, sex is treated as both a physical characteristic and an assumed characteristic. This means that if someone discriminates against you based on an assumption (correct or not) that you are a certain sex, then you can make a claim. For example, if you are barred from a women-only space based on the assumption you are male.
This matters because access to single-sex spaces relies on the service provider’s judgment or perception. If a woman is barred from a women’s single-sex space because the service provider perceives her to be trans, then she can sue the service provider for discrimination. It would then be up to the courts to decide if the organisation was proportionate and legitimate in barring her.
Gender reassignment is also a protected characteristic, regardless of whether someone holds a gender recognition certificate or has undergone any medical procedure related to gender. This means it is illegal to discriminate against someone in the workplace or place of business because they are trans except when it is deemed proportionate and for legitimate reasons related to single-sex spaces and services, as discussed above.
Starmer, a lawyer himself, has a better handle on the legal framing of the Equality Act and how it could be interpreted when it comes to single-sex spaces. But both he and Sunak overlooking a crucial issue: enforceability.
Currently, even if an organisation has a legitimate reason to exclude trans women from single-sex services, it relies on the trans woman stating she is trans or a service provider perceiving a woman as trans and denying her use of the service.
Changing the Equality Act to define sex as biological sex will not overcome this principle, as no trans person carries around ID explicitly stating their transness willingly. Under the Gender Recognition Act 2004, it is illegal to ask a person if they have a GRC, thus it would rely on the observer to make a judgment, to the point of potentially requiring genital inspection. Even then, this falls down when you consider some trans women have gender reassignment surgery.