The Observer’s take on the EHRC’s ruling on gender recognition reforms in Scotland | Observer Editorial
It is not uncommon for people’s basic rights to come into conflict. Democracies need legal frameworks and justice systems that allow these conflicts to be resolved in a fair and civilized manner. In the UK, the Equality Act 2010 provides a strong legal framework that protects people from discrimination and helps to balance rights where there is a conflict. It protects people from discrimination based on nine “protected characteristics” – including sex and gender reassignment – and sets out important exceptions that allow single-sex services, spaces and sports as a proportionate way to achieve a legitimate objective.
The Equality and Human Rights Commission (EHRC) is the statutory regulator of the Equality Act. Last week he told the Scottish government that his proposals to reform the Gender Recognition Act 2004, which allow trans people to change the way their sex is recorded for legal purposes, should be put on hold because the consultation on these changes has not been sufficiently taken into account. their impact on women‘s gender rights. The Scottish government is proposing to move to a system allowing people to change their gender for legal purposes through self-declaration, instead of needing a medical diagnosis of gender dysphoria.
The EHRC is correct that these reforms have gender rights implications that have not been considered. There is not yet enough case law to fully understand how the Equality Act and the Gender Recognition Act intersect, but allowing people to change their legal sex through self-identification could in practice have important consequences on the threshold from which it is legal to exclude these people. who are biologically male in female-only spaces, on gender discrimination and equal pay cases, and on data collection.
Transgender rights and women’s gender rights must be vigorously defended. It should be a source of pride that the UK was one of the first countries to enshrine legal protection against discrimination for trans people in 1999; no such federal protection exists in the United States. Trans people can change their gender marker on many official documents, including their passport, without going through the legal process to change gender. Trans people face unacceptable levels of societal prejudice due to their gender non-conformity, and waiting lists for trans health services are far too long: this absolutely needs to be addressed.
But as reform of the Gender Recognition Act will affect another protected characteristic, sex, it is extremely important that any reform proposal in the UK is informed by proper consultation with all those affected. This did not happen in Scotland. Instead, Nicola Sturgeon simply denied that such a conflict existed. Women raising legitimate concerns that opinion polls show are widely shared have been tarnished as “transphobic” by Scottish politicians.
They are politicians who foment rather than broadcast contested debates. It has created a culture in which women who believe that biological sex cannot be fully replaced by gender identity in law – a belief itself protected by equality legislation – are harassed at work and visited by the police for expressing lawful and legitimate opinions. . Everyone loses: in a world where some people are squeezed out of the democratic process of debate and consultation, it is impossible to build social consensus around the balance of rights of two groups facing significant discrimination.
The EHRC’s own response in 2018 to the Conservative government’s proposals to introduce self-identification in England and Wales – now abandoned – also downplayed their impacts on equality law. In doing so, he breached his legal obligation to protect anyone at risk from discrimination and to foster good inter-group relations. Now under new leadership, the EHRC’s reaffirmation of its role as a fair and impartial regulator of trans and women’s rights is belated but welcome.