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by Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie
11 March 2019
Biological sex is the legal cornerstone of women’s rights to fair treatment

The 2011 census - PA

Biological sex is the legal cornerstone of women’s rights to fair treatment

A 200-word Bill has sparked a debate about how we define what it is to be a man or a woman. Finding ways to talk about this which leave no-one feeling raw or vulnerable is proving hard.

Introduced in October 2018, the Census (Amendment) (Scotland) Bill is primarily aimed at enabling the inclusion of two new, voluntary questions on sexual orientation and transgender identity in the 2021 census.

More controversially, the Scottish Government has proposed that the 2021 census should no longer ask simply whether people are male or female, but should ask instead whether a person identifies as male, female or another category. For the first time, the question would not follow the binary definition of sex as used in law, notably in the Equality Act, but also include a response option explicitly about self-identity.

The proposed change will not however provide data on the numbers of people who identify as neither male or female: officials have already agreed that any non-binary answers would be randomly assigned as male or female, to maintain consistency with the published data in all previous censuses. Nor is it intended to capture data on those with DSD conditions (sometimes called intersex). DSD campaigners have argued against the census being used to identify the very few such cases where it is difficult to determine whether someone is male or female, and the government has agreed that that is not its aim.

Currently sex is a core demographic variable, widely used by policy-makers, planners and researchers. Sex and age data underpin population projections used by central and local governments for decision making and resource allocation. The census also provides sex-disaggregated data on topics such as lone parent households, health, provision of unpaid care, education and economic activity. So the potential impact on data quality of changing this question deserves careful attention. However, the consequences also go beyond the census.

Rights, privacy and the Equality Act

The argument for a question more explicitly about identity is framed in terms of rights. The Equality Network state that collecting data on biological sex would ‘undermine trans people’s dignity, rights and identity’. Describing the collection of biological sex data as likely to have ‘a chilling effect’, Engender state: ‘We can find no benefits for women in undermining the privacy of transwomen and transmen by requiring them to disclose their birth sex.’  

One can sympathise with a trans person’s frustration at being asked to answer a question in a way that feels contrary to the gender they identify with. However, there are also concerns that the privacy argument will set a precedent that could undermine decades’ worth of policy-making aimed at safeguarding rights based on sex. If it is accepted that, in principle, it is wrong to ask people about their biological sex – as some are claiming in regard to the Census Bill – it follows that the provisions of the Equality Act will also be made unworkable.

Under Section 11 of the Equality Act 2010, “sex” is a protected characteristic. This is the legal cornerstone of women’s existing rights to fair treatment, and to privacy and dignity in services provided to them. For almost everyone, sex under the Act simply means biological sex, but there are also around 5,000 people across the UK who have changed their legal sex via a Gender Recognition Certificate (GRC), whose position is less simple.

The Equality Act provides eight single-sex exemptions that allow employers, service providers, associations and charities to provide single-sex or separate sex services for a range of reasons. People with a GRC are generally entitled to use such services in line with their new legal sex, but Schedule 3 of the Act allows services not to include them if it can be shown this is proportionate and meets a legitimate end. Schedule 9 of Act similarly allows employers to limit certain roles to those who have a particular sex by birth.

The operation of the Act relies on providers, such as an employer recruiting for a single-sex post providing intimate care or a hospital operating a single sex ward, being free to ask people what sex they are in law, and sometimes what sex by birth. Generally these things run on trust, so this is not about asking to see a specific document, but about being entitled to ask at all. 

So although a recent multi-signatory letter to the Herald stated: ‘The right of trans people to access gender specific services is an already settled legal matter’, the right of access to sex-specific services is only clear for trans people with GRCs, in situations where the exemptions above have not been applied (‘gender specific services’ is not a concept in law). That the Equality Network and Stonewall have lobbied at Westminster against the existing exemption surely shows that they do not think the law as it stands gives complete access.

In practice, it is increasingly common for services and roles for women to be open to anyone who identifies as one, whether or not they have a GRC, so that powers under the Equality Act to draw lines based on sex, whether biological or legal, are not used. Sometimes this is a conscious policy choice. However, it is not clear that such decisions are always made in full knowledge of the law. The UK Women and Equalities Committee heard that many service providers are unclear about the legal position, which is not always made clear in official guidance.

Sex matters

Over the last 150 years women have gained the right to education, win property rights, and achieve political representation, all previously denied them due to their sex.

In 1975, the then Labour government introduced landmark legislation for women’s rights. The Sex Discrimination Act 1975 stated clearly that it was concerned with discrimination against a woman “on the ground of her sex”.  The Act defined a woman as a female of any age, a definition carried forward to the Equality Act 2010. The fundamental belief underlying the Act was that the physical and social consequences of being born and living with a female body are so significant that women deserve specific protections in law, including the right in certain circumstances to single-sex services and spaces.  

Four decades on, the centrality of sex to women’s experience no longer seems to be taken as a given. The Scottish Government believes that gender equality (which relates to how people self-identify and express themselves socially) should take prominence in its policy making. For example its Equality Evidence Strategy 2017-2021 also reframes the protected characteristic of sex in terms of gender equality.

What counts?

Beneath the census debate lies an argument about the relevance of biological sex to women’s lives. A major conceptual shift is being proposed. Instead of seeing differences in people’s experiences as being significantly shaped by the physical and social consequences of being born female, these are argued instead to be the consequence of something detached from that, variously described as gender, gender identity or lived identity.

There is plenty of evidence that sex discrimination remains rife. Given the importance of sex-disaggregated data to understanding this, both the Scottish Government and organisations tasked with giving women a voice in government, need to explain more clearly why they appear so unconcerned about introducing risks to its validity and reliability.

We believe the burden of proof remains with those who do not think robust data on sex, whether legal or biological, is still needed. Those advocating the privacy argument also need to address the significant implications for the practical operation of the Equality Act: for the protections it provides, and the continuation of any single-sex services and roles. Putting clarity and evidence at the centre of this debate will be one way to make sure everyone feels their interests are understood and their rights valued.

Dr Kath Murray, Lucy Hunter Blackburn and Lisa Mackenzie are MurrayBlackburnMackenzie, a policy analysis collective based in Edinburgh

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