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Sex and the Equality Act 2010 – LWD responds to Kemi Badenoch’s announcement

Sex and the Equality Act 2010 - LWD responds to Kemi Badenoch

The Minister for Women and Equalities Kemi Badenoch has firmly placed the question “Will you stand up for single-sex spaces?” on the election agenda. If the Conservative Party returns to power on July 4th, she promises to clarify ‘sex‘ to mean biological sex in the Equality Act 2010.

“If we look at the origin of the Gender Recognition Act [GRA2004] and the Equality Act [EA2010] it is quite clear that the intentions in the law are being misinterpreted due to social changes. What we are trying to do is re-emphasise that sex in the law means biological sex. It always has done, but there has been a lot of misinterpretation and we are adding that clarification so that the law is clearer…

…what we are trying to do is protect women’s spaces. We are trying to create a chilling effect for those men who are predators who are exploiting trans people and exploiting the laws we have put in place to protect trans people. That is what we are trying to stop.”

Kemi Badenoch on the Today programme 03/06/24 – Listen from 2:10:00

Labour Women’s Declaration welcomes this clear pledge to clarify the law, despite the Conservatives failing to do so whilst in government. We urge all parties, including the Labour Party, to follow suit and commit to clarifying the law and protecting women’s rights and spaces in government.

Responding to Badenoch’s intervention, some Labour MP’s labelled it a distraction, questioned whether clarification of EA2010 is needed and suggested that improved guidance on the law will suffice. However this response has been met with justified criticism from key commentators and experts. Journalist Sonia Sodha pointed out that the Party’s response is legally incorrect, and public law expert Michael Foran explained each aspect of Badenoch’s proposals in considerable detail.

Further guidance is not enough. Lady Justice Haldane, in her judgement on the definition of sex as challenged by For Women Scotland, emphasised that the courts require clarity about the interaction of the EA2010 and GRA2004 and suggested that this responsibility sits with legislators.

Many in the Labour Party have shown support for legal clarification. In April 2023, Labour welcomed the Equality and Human Rights Commission’s recommendation that the definition of ‘sex’ in the EA 2010 should be clarified, and in June 2023, several Labour MPs spoke in favour of legal clarification at the petition debate on ‘Sex in The Equality Act’.

Labour must listen to its MPs and women in the party who have raised concerns about the confusion around sex and gender in law and, if in government after 4th July, address the urgent clarification that is required. Crucially, Labour must learn from Scotland’s disastrous Gender Recognition Reform Bill – and the
attempted gender quotas bill which had to be amended in line with EA2010 – to avoid unworkable or contradictory commitments and political chaos.

We have urged the party to review and consult on all its sex and gender policies (read LWD’s take on Labour’s current positions in full). Labour’s manifesto is due for ratification this Friday and publication on 13th June. We will assess the proposals by asking whether they:

  • comply with the full implementation of The Cass Review?
  • safeguard women’s sex-based rights and protections?
  • safeguard the protected characteristic of sexual orientation (i.e. same-sex attraction)?
  • support gender non-conforming people and children in particular
  • offer the review and consultation process needed to achieve the above?

If anything fails these tests, LWD will continue to hold Labour to account in relation to any unfair or contradictory proposals.

We urge Labour to consider that the majority of UK voters agree that women’s sex-based rights should be safeguarded under EA 2010, and it would be unwise to enact legislation in government which damages these rights.

Further information on the clarification of ‘sex’ in law and appeal of the Haldane ruling

Visit the Sex Matters site to follow this issue in the election campaign.  They have already sent a briefing to all prospective parliamentary candidates (which you can read here). The clarification of sex in law is also vital for lesbians as, without it, sexual orientation (same-sex attraction) as a protected characteristic is undermined.

The Supreme Court appeal of Haldane’s ruling will be heard later this year. We thank For Women Scotland for their vital work in this area and encourage everyone to support their appeal and fundraiser. We hope that this appeal will provide some clarification that ‘sex’ in the Equality Act means biological sex, as outlined in Foran’s comprehensive thread. But whatever the outcome of that appeal, the government must ensure that the current legal uncertainties are resolved. It should not require individual women taking governments to the Supreme Court to sort out problems in the application of UK law. 

Once the Labour manifesto is published on 13th June, we will produce a briefing for candidates and publish our response piece on this website. 

Further reading: The Times


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