When the Equality Act was passed in 2010, few doubted that Parliament’s intention was that sex should mean biological sex: either male or female, recorded at birth—an immutable characteristic. However, uncertainty has since arisen, specifically as to whether or not a person with a gender recognition certificate has legally changed their sex for the purposes of the Equality Act. Whatever the law actually says, the extent of the confusion is such that many people now believe that when someone expresses a desire to live as the opposite sex, that person then has a legal right to be treated as if they have changed sex.
This is not an academic argument. It has significant practical and safeguarding implications, as the outstanding
work of Policy Exchange’s Biology Matters unit continues to reveal. Take the example of a tribunal brought against Sheffield Teaching Hospitals NHS Foundation Trust last year. A male catering employee known as V, who identified as a trans woman, was given permission to use female changing rooms. When female staff complained about being forced to undress with V—in particular, seeing him naked from the waist down—the issue was raised with V by a female manager. In response, V brought a harassment case against the trust and, unbelievably, won.
Instead of considering whether the manager acted reasonably in being concerned about the exposure of male genitals in the ladies’ changing room, the judge decided that V had been treated differently from another woman. The judge treated V as though his sex was female when the issue was the fact that his body was male. Of course, the women who complained about V were not discriminating against him because of his trans identity, but because he was male, and such discrimination is of course—