As talks of a possible amendment to the Equality Act 2010 are underway, the legal rights of trans people are at risk – but, as we will try to show, trans people may not be the only ones affected by these changes.
The twenty first century has seen a rise in social and political movements, such as ‘Black Lives Matter’ and ‘Me Too’. It seemed that society might be progressing towards achieving equal rights, accepting differences and appreciating minorities, and we began to see a small glimmer of light at the end of the tunnel. However, recent political shifts in the UK government could potentially constitute an obstacle for the social progress attained thus far.
As newly appointed Prime Minister of the UK, the leader of the Conservative Party, Rishi Sunak has already announced his plans to review the Equality Act of 2010, which for over a decade has provided a framework of protection to people who have, or are associated with, a certain ‘protected characteristic’. Under the Act, an individual is protected from discrimination on the basis of nine protected characteristics, one of them being gender reassignment, which to this day has been key in safeguarding the legal rights of trans people.
Section 7 of the Act states that a person who is proposing to undergo, is undergoing, or has undergone a process of changing the sex attributed to them at birth, has the protected characteristic of gender reassignment. In simple words, the Equality Act 2010 states that a person must not be discriminated against because of their gender reassignment, ie, where their gender identity is different from the sex attributed to them at birth.
The Equality Act can be distinguished from one of its predecessors, the Sex Discrimination Act 1975 because it has introduced a clause that effectively changes the definition of gender reassignment, by removing the requirement for surgery. Essentially, to be protected from gender reassignment discrimination it is no longer necessary to have undergone any surgery – their protection begins from the point at which they propose to undergo a process of changing their sex. This is because the current legislation recognises that changing one’s physiological characteristics is a personal process, not a medical one. It follows that an individual can be protected regardless of whether they have undergone surgery to change their sex attributes provided that they are proposing to do so.
However, the current status of trans people’s rights is set to change, as the Prime Minister is planning on removing many of the legal protections that trans people currently enjoy. First of all, it is important to understand what Rishi Sunak’s proposal entails: to “review the Equality Act to make it clear that sex means biological sex rather than gender”. This means that the protected characteristic of gender reassignment would now only protect those who have gone through the full surgical procedure of changing their sex attributes.
If successful, gender self-identification, which refers to the notion that a person should be allowed to determine their legal sex and gender without the need for medical evaluation, will cease to have any legal force. Legally, and practically this could have many ramifications. For instance, the proposal would fundamentally remove trans people’s rights to access single-sex spaces (like bathrooms) on the basis of self-identification. If implemented, a significant portion of trans people who have not undergone medical transition, and do not hold a Gender Recognition Certificate – a legal recognition of your gender, will no longer have the same rights. As a consequence, trans people’s ongoing battle for inclusion will once again be threatened, as will the recently acquired societal recognition, and acceptance of their rights.
The question that inevitably arises is whether the review of trans’ rights can become a catalyst for the government to review the rights of other minorities. Arguably, the amendment to gender reassignment under the Equality Act 2010 could set a dangerous precedent for future amendments/additions to the Act and to the acknowledgement/acceptance of protected characteristics. This would pose a great threat to social welfare, by highlighting the volatility and instability of human rights that supposedly form the bedrock of a democratic and equal society. Can the government, at its discretion, bring forward proposals to remove the rights of any/all minorities, thereby further marginalising already marginalised communities? While this may seem like a dramatic proposition, the fact that a potential undermining of the Equality Act is in the works, turns these doubts into a real concern.
The UK Government and Parliament have published a petition that commits to “not amending the Equality Act’s definition of sex”. This petition will be reviewed by the Petition Committee, which has the power to press for action from Parliament. Once it reaches a total number of signatures, the government will respond to the petition, and it may even be considered for debate. Therefore, each person signing this petition is taking direct action against Sunak’s proposal.
It is important to take a collective stance against the eradication of human rights and equality. Sign now and be updated on the status of the petition.
By Greta Santulli Sanzo and Malika Nakisbekova First year Law (LLB) at Queen Mary University of London