Why the government won’t define sex in law

7 February 2023

Carys Moseley comments on the government’s recent response to a petition calling for sex to be defined in law.

The UK government has refused to define sex as biological when asked by a Parliamentary petition to do so. This is a very serious matter as it suggests the government has no serious intention of tackling the crisis over sex and identity that has engulfed the United Kingdom since Brexit. For all its posturing on ‘the war on woke’, it is clear now that this government has abdicated all responsibility and authority on the matter. The gender-critical feminist project of getting the government to define sex in law has therefore run into the sand.

Parliamentary petition asking for sex to be defined as biological

The following petition was published on the Parliament website and widely circulated:

“Update the Equality Act to make clear the characteristic ‘sex’ is biological sex

“The Government must exercise its power under s.23 of the Gender Recognition Act to modify the operation of the Equality Act 2010 by specifying the terms sex, male, female, man & woman, in the operation of that law, mean biological sex and not ‘sex as modified by a Gender Recognition Certificate’

“The Equality Act 2010 covers nine separate protected characteristics, including ‘Sex’ & ‘Gender Reassignment’. This protects people against sex discrimination and discrimination because a person is transgender.

“There has been much confusion about how the Equality Act and GRA interact. This has caused uncertainty and conflict for women, transgender people, and service providers. The GRA includes a provision to amend other laws to make it clear whether a GRC changes the definition of sex for that law.”

The petition gathered over 79,000 signatures, meaning that the government was bound to respond.

The government’s response

Last week the government responded thus:

“Under the Equality Act 2010, providers are already able to restrict the use of spaces/services on the basis of sex and/or gender reassignment where justified. Further clarification is not necessary.

“The Equality Act 2010 provides protection against discrimination, harassment and victimisation across a number of grounds, including sex. We are committed to upholding Britain’s long-standing record of protecting the rights of individuals against unlawful discrimination.”

The government went on to claim that guidance by the Equality and Human Rights Commission (EHRC) “provides much needed clarity to those offering single-sex spaces.”

This is what it says:

“As the guidance makes clear, it is entirely acceptable for providers of single-sex services to take account of the biological sex of their service users. Where it is a proportionate means of achieving a legitimate aim, the Equality Act 2010 is clear that service providers can exclude, modify or limit access for transgender people, even where they have a Gender Recognition Certificate (GRC). This includes where a service provider has concerns that the presence of individuals who are biologically male could prevent them from meeting their aims, such as in the example below, included in the guidance:

“‘A group counselling session is provided for female victims of sexual assault. The organisers do not allow trans women to attend as they judge that the clients who attend the group session are likely to be traumatised by the presence of a person who is biologically male.’

“It is important that providers of single-sex services are clear that biological sex can be taken into consideration when providing services.

“The Government is committed to maintaining the safeguards that allow organisations to provide single-sex spaces. It is important that the principle of being able to operate spaces reserved for women and girls is maintained. Government is committed to tackling harassment and abusive behaviours by all individuals, and ensuring single-sex spaces are safe for those using them.”

The government didn’t answer the petition’s question

There are two problems with the government’s response to the petition. The first is that it did not really respond to the question, which was to commit to defining sex in law as biological.

Rather, what the government did was to avoid answering the question, instead prompting for a narrow discussion of single-sex service provisions under the Equality Act 2010. In passing it claimed that the Equality Act already allows providers of single-sex services to respect sex as biological. This narrow focus evades the problem that the law on sex permeates all aspects of legislation.

Postcode lottery of real single-sex services

It is important that the government only says that providers of single-sex services can limit access to males who say they are female, rather than saying that they must. In other words, the government is leaving it up to providers of single-sex services whether or not they choose to keep them truly single-sex services.

This is not acceptable, as it will result in a postcode lottery of real single-sex services. We already know that male-to-female transgender people tend more towards living in large cities. This suggests that single-sex services in large cities may not always be true single-sex services. Clearly the government is passing the buck here and avoiding responsibility. It refuses, in other words, to act as an authority on the matter.

Employment law paved the way

As has already been said repeatedly, the definition of sex is a mess in the law. Sex has been redefined since the 1990s. Transsexual rights were first recognised in UK employment law in the 1990s, thanks to litigation by a British citizen at the Court of Justice of the European Union.

The two definitions of sex in the NHS

Sex was also redefined in the NHS. For several decades, the NHS has recognised a distinction between what it calls ‘genotypic sex’, i.e. the true biological definition of sex as rooted in chromosomes, and ‘phenotypic sex’. The latter refers to the appearance and bodily form of an individual as influenced by hormones. Most NHS statistics record people’s phenotypical sex, which is because they record the ‘chosen sex’ of transsexuals’. This means that a good deal of NHS statistics are actually faulty.

Gender Recognition Act 2004 implies correct definition of sex

Importantly, a careful reading of the Gender Recognition Act 2004 shows that it infers that female-to-male transsexuals still have to be recognised as biological mothers on their children’s birth certificates. They cannot be registered as their children’s fathers.

As all mothers are women by virtue of what the NHS calls their ‘genotypical’ sex, this shows that the Gender Recognition Act tacitly assumes the correct scientific definition of sex.

Gender Recognition Act 2004 contradicts itself

At the same time, the Gender Recognition Act is what introduced the system of a Gender Recognition Panel issuing transsexuals with Gender Recognition Certificates (GRCs), upon producing evidence of transsexualism from two medical doctors. These GRCs allow people to change their birth certificates to indicate their chosen sex. This would be the ‘phenotypical’ sex, attained by means of gender reassignment surgery and other allied procedures.

Effectively, this means that the Gender Recognition Act contradicts itself, in allowing for both the true scientific definition of sex, and also the fictional definition of sex.

The Equality Act 2010 muddies the waters

In the Equality Act 2010, sex is contrasted with gender reassignment, which is taken to be the protected characteristic for transsexuals. However, gender reassignment is a process that has a beginning and an end, and so it is unsurprising that on the whole, transsexuals refer to themselves as belonging to their chosen sex once they consider themselves to have completed it. Nevertheless, the act allows for a person who has undergone gender reassignment to use that as a protected characteristic. This means that transsexuals have a choice of two protected characteristics, whereas most of the population only have one. It also means that gender self-identification is effectively permitted under the Equality Act.

As the Equality and Human Rights Commission has explained, under the Equality Act 2010 ‘a person’s legal sex is their biological sex as recorded on their birth certificate’. However, it goes on to say that ‘a trans person can change their legal sex by obtaining a GRC’ (as permitted by the Gender Recognition Act). The Equality Act therefore assumes that possession of a Gender Recognition Certificate allows transsexuals to be considered as members of their chosen sex. In focussing narrowly on the Equality Act, the government sidestepped the problem that a person can change their legal sex.

Truth and reality subordinated to individual rights

The government’s response to the petition clearly prioritises protecting individual rights under the Equality Act, not protecting truth and reality as the basis for legislation. This means that the natural, God-given duty to tell the truth is subordinated to the purely secular, state-driven duty of public bodies to uphold individual rights.

In reality, this is nothing new as the historical paper-trail shows.

The government has abdicated all authority

At this point, it is important to say that the government is running out of excuses. It is clear that it has merely seen this issue as a ‘culture war’, and not primarily as a moral issue.

In dodging the question, and deferring authority downwards to local and individual service providers, the government has abdicated all authority. It is perpetuating confusion and social chaos based on the clash of competing rights. Far from being a terror to bad conduct (Romans 13), the government is allowing it to continue on the part of unscrupulous local service providers. They will now have to work in a situation where sex is supposedly defined, but where gender self-identification is permitted, and where the Equality and Human Rights Commission discourages asking people for their Gender Recognition Certificate to prove their legal sex “in most circumstances.”

The consequences of secularism and rejecting God

This weird combination of narrowness and evasiveness masks the deeper problem, namely the prioritisation of rights over responsibilities. This is fundamentally a secularist and atheist attitude, one where the ethics of the public sphere primarily rests on citizens claiming or securing their rights first and foremost. The state’s role is to manage and facilitate this process. We can all pretend to be who we want to be, rather than accept who God has made us to be.

There is no consistent regard for the truth of who people are, ultimately because rejection of the truth about sex is based on rejection of God as its creator. The gender-critical feminist project of getting the government to recognise sex in law has manifestly failed, because it too was based on the notion of rights above all.

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