Why the EHRC won’t help the government define sex as biological

17 April 2023

Public Policy Researcher Carys Moseley on how the EHRC is compromised on sex and gender recognition

Baroness Falkner, the chief executive of the Equality and Human Rights Commission, recently wrote in the Times about the need for a biological definition of sex in law.

The EHRC revealed that the Minister for Women and Equalities Kemi Badenoch had asked the EHRC for advice on defining sex in the Equality Act 2010. But the available evidence strongly suggests that the EHRC is incapable of giving the government sound advice on this matter. Indeed, the available evidence needs far more open and robust debate than is currently the case.

The Equality and Human Rights Commission’s initial advice

The Equality and Human Rights Commission then published its reply to the government, which you can read in full here. It says that defining ‘sex’ in the Equality Act 2010 as biological “could bring clarity in a number of areas, but potential ambiguity in others.”

It recommended that the government conduct legal and policy analysis on the issue in accordance with the Public Sector Equality Duty. (The PSED is enshrined in law as part of the Equality Act 2010.) It also said this should be done “with due regard to any possible disadvantages for trans men and trans women.” The EHRC claimed such work would be welcomed by “the many who do not take the polarised positions currently driving public debate.” This suggests that insisting on the primacy of biological sex is considered as one-sided and ‘polarising’, i.e. narrow and extremist.

There are already several definitions of sex

For any definition to make sense, there has to be a clear recognition by the government that there are currently several definitions of sex in law and public policy. I have outlined on a previous occasion what the problem is:

  • There are two definitions of sex in the NHS
  • The Gender Recognition Act implies the biological definition of sex when it comes to who is a mother
  • At the same time, the Gender Recognition Act introduced the granting of Gender Recognition Certificates, which allowed individuals to legally claim they belonged to the opposite sex upon a diagnosis of transsexualism and obtaining two doctors’ signatures.
  • The Equality Act 2010 created even more confusion. Its effect was to allow people who have undergone gender reassignment to use either the protected characteristic of sex or that of gender reassignment.

Sex self-ID has long been facilitated by the Gender Recognition Act

The truth is this: the government has long facilitated sex self-identification by facilitating transsexual surgery on the NHS. It is government-facilitated sex self-identification because NHS doctors have been playing along with a fantasy that has no biological basis, instead of offering good psychotherapy to deal with the underlying mental health problems.

The system whereby the Gender Recognition Panel issues these people with Gender Recognition Certificates is what legally enables this. Having a GRC legally allows a person to have their birth certificate change to indicate their fantasised ‘sex’.

The EHRC is biased towards trans rights

It is evident from Baroness Falkner’s Times article that the EHRC has already been facilitating sex self-identification. This is what she says:

“In light of the current lack of a definition of “sex”, at EHRC we have taken the position that a trans woman with a GRC, for example, is in principle entitled to access women’s spaces such as a hospital ward, a woman’s changing room, and so on. These services can sometimes still be restricted to biological women, but that requires explicit additional steps.”

In other words, the EHRC admits that for many years it has been allowing men whom the NHS and the government have agreed to treat as ‘women’ to walk into single-sex spaces that should legally be reserved for women. When did we ever hear of these males being asked for a copy of their Gender Recognition Certificates before entering these spaces? I doubt whether this has ever happened, for had it happened, it would undoubtedly have been publicised all over the medias as an injustice. Indeed, it is very likely there would have been a legal case launched on the basis, a piece of strategic litigation intended to go all the way up to the European Court of Human Rights.

The EHRC ignores children’s needs

Baroness Falkner says that the ambiguity about what sex is affects “hospitals, schools, shops and workplaces”, and that these organisations “struggle to understand how they can legally provide the kinds of services they wish to operate.” However, she then goes on to say this:

“We think this could bring clarity in eight different areas: pregnancy and maternity; freedom of association for lesbians and gay men; freedom of association for women and men; positive action (e.g. women-only shortlists); occupational requirements; single sex services; sport; and data collection.”

There is no mention of children here, even though the Equality Act 2010 extends to schools and therefore affects children and those who work with them. Transgender ideology is being taught to children in RSE lessons, and children are having their gender changed behind their parents’ backs.

The EHRC wants clarity for policy areas pertaining to adults but has nothing to say about how children need clarity about who is male or female. This makes the EHRC look as if it is more concerned about women-only shortlists for political parties than it is about masses of children being harmed by transgender indoctrination. Its rights-based focus explains how it puts words into the mouths of organisations such as schools about “the kinds of services they wish to operate”.

Is the EHRC opening the door to gender self-identification?

Baroness Falkner then goes on to say this:

“We know some trans people are worried that a biological definition of sex would undermine their rights. It is essential to understand that this change would not affect trans people who do not have GRCs.”

She then admits what the 2021 Census for England and Wales shows, which is that:

“Currently, according to the census, about 0.5 per cent of the adult population – 262,000 people — identify as trans, but only about 7,000 of them hold a GRC. A biological definition of sex would be a potential diminution of GRC holder rights only in exceptional circumstances.”

This still leaves 255,000 people who self-identify as having ‘a different gender identity’ than their sex, but who have no Gender Recognition Certificate to back this up. Baroness Falkner was silent on these people. Since then sociologist Michael Biggs has suggested that many of these people likely had a poor grasp of English and therefore misunderstood the Census question. This means the Census has not helped establish how many transgender people there are who do not have a GRC.

The elephant in the room – the Istanbul Convention

There is a huge elephant in the room here that nobody is mentioning. Last summer, the government quietly ratified the Istanbul Convention on violence against women, a major international treaty. The full title of the Istanbul Convention is the Council of Europe convention on violence against women and domestic violence. The Istanbul Convention uses the terms ‘sex’ and ‘gender’ interchangeably; however, its definition of gender is incoherent, and overall it does not define women in purely biological terms.

The preamble to the Istanbul Convention says that Council of Europe member states have ‘regard to the Rome Statute of the International Criminal Court (2002)’. The Rome Statute, incorporated into UK law as the International Criminal Court Act, has a footnote stating that ‘gender’ means biological sex.

However, Article 3(1) of the Istanbul Convention defines ‘gender’ in terms of social roles, etc. The ostensible purpose of this is as a basis for speaking of ‘gender-based’ behaviours.

At the same time, Article 4(3) of the Istanbul Convention refers to both sex and gender. Hence we can tell that ‘gender’ is being used not as a synonym of sex, as in the Rome Statute, but to smuggle in notions of ‘gender identity’.

Clearly here we have a contradiction of definitions. The definition of ‘gender’ has been stretched to the point of contradicting itself. The Istanbul Convention undermines the Rome Statute.

The Istanbul Convention shies away from defining women

The Istanbul Convention is another important reason that politicians in the UK cannot define 100% what a woman is.

Article 36(1) of the Istanbul Convention says this:

‘[State] Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:

* Engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object’.

The correct wording should be ‘penetration of a sexual nature of the body of another woman’, as it is a ‘convention on preventing violence against women’.

The reason that the document speaks of ‘non-consensual vaginal…penetration of the body of another person’ is that in line with transsexual/ transgender ideology, it deems that ‘not everyone who has a vagina is a woman’, or that ‘some men have vaginas’. There are two reasons for this: 1) some male-to-female transgenders have artificial vaginas, 2) many female-to-male transgenders still have vaginas.

Push for gender identity laws coded as objection to ‘forced sterilisation’

Article 39 (b) of the Istanbul Convention opposes ‘forced sterilisation’ of ‘women’. It requires that state parties criminalise “performing surgery which has the purpose or effect of terminating a woman’s capacity to naturally reproduce without her prior and informed consent or understanding of the procedure”.

Given that the Istanbul Convention has no coherent definition of women, and that a man can be a woman according to its wordplay, this clause can be applied to male-to-female transgender people who refuse their countries’ legal requirement for medical checks before being allowed recognition as members of their chosen gender. A legal requirement for male-to-female gender reassignment before obtaining a Gender Recognition Certificate could be reinterpreted as a requirement for ‘sterilisation of a [trans] woman’.

The EHRC cannot handle the problem

The Equality and Human Rights Commission has failed to address the problems associated with sex and gender reassignment. It therefore cannot properly tackle the issue of defining sex biologically.

Furthermore, its silence on children’s need for a clear definition is very disappointing. The fact that it calls for the government to engage in analysis but not public consultation is concerning. Perhaps the hope is that the government will work in the dark so that nobody asks too many awkward questions. We must hope that

“whatever you have spoken in the dark will be heard in the light, and what you have spoken in the ear in inner rooms will be proclaimed on the housetops.” [Luke 12: 3]

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