Legislative Definition of Sex

Hannah Bardell Excerpts

Monday 12th June 2023 Westminster Hall

[Miriam Cates]

It is a concluded case.

The women were discriminating against him because he was male, and such discrimination is perfectly within the Equality Act if it is

“a proportionate means of achieving a legitimate aim”,

which in this case was to protect the integrity of single-sex spaces.

I have nothing but compassion for people whose biological sex is a source of distress; they should of course receive the best evidence-based treatments for gender dysphoria. But while a small number of people rightly have the protected characteristic of gender reassignment, everyone, including trans people, has the protected characteristic of sex—male or female. Where those protected characteristics collide, we must ensure that everyone is protected according to their sex and that proportionate accommodations are made to assist those who do not wish to use the facilities of their sex.

We must clarify the Equality Act to make it clear that sex means biological sex and to ensure that the providers of single-sex services and facilities understand and protect the single-sex nature of the provisions. It is extraordinary that in 2023—a time of unprecedented knowledge—we are arguing about the definition of something that has been known since the dawn of time. The most contentious question of our day has famously become “What is a woman?”—a question that no previous society has felt the need to answer.

Despite the semantic acrobatics employed by some to dodge the question, we all know, instinctively and intrinsically, what a woman is. The sex binary—the biological state of being either male or female—evolved hundreds of millions years ago, before we humans walked the earth. Being able to tell the difference between a man and a woman is not a matter of acquired knowledge. It is as instinctive as being able to tell up from down. Indeed, our survival as a species depends on it; if we want to reproduce, and to protect ourselves and our children, we had better know the difference between a man and a woman.

Men and women are different physically, psychologically, sexually and socially. All civilisations are built on an understanding of these differences, creating structures, rules and boundaries to protect women and children from male violence and to preserve the dignity of both sexes. There is nothing more destabilising to society than to dismantle the legal, social and cultural guardrails that protect women and children by pretending that males become females and vice versa, and allowing that to creep into our law.

While academic elites cave in to aggressive and misogynistic trans activism, ordinary women are frightened to go to hospital, ordinary men fear for the safety of their daughters in public toilets, ordinary children are subjected to a psychological experiment in which they are told they can choose their gender, and ordinary toddlers are used to satisfy the sexual fetish of adult men dressed as eroticised women. Understanding the difference between male and female underpins society, safety and security. We must clarify the Equality Act, and give ordinary people the certainty that our laws can be trusted to protect women and children and that sex means sex.

[Hannah Bardell (Livingston) (SNP)]

On a point of order, Mrs Cummins. I feel it is incumbent on me to make a point of order on the fact that trans people are being characterised as predators, and that is deeply undemocratic and deeply worrying. That is not what this debate is about. For the Member to be using such language is unparliamentary. I seek your guidance, Mrs Cummins.

[Judith Cummins (in the Chair)]

That is not a point of order because it is not a matter for the Chair.

--- Later in debate ---

[Dame Nia Griffith (Llanelli) (Lab)]

The Equality Act 2010 protects against direct and indirect discrimination, but there has always been provision in the Act for different treatment where it is a proportionate means to a legitimate aim—that is, different provision for those whose sex is assigned at birth and those whose legal sex has been acquired through a gender recognition certificate.

For example, although I know of one rape crisis service that has been providing women-only services for 30-years, and uses trans-inclusive language and has been trans-inclusive for 30 years, many other organisations providing services for those who have suffered domestic violence use the current provision in the Equality Act to provide exclusive services for those whose sex at birth was female.

Decisions about who can compete in sports can be made by sporting bodies as appropriate for the sport, and I do not understand why so many Members do not seem to have understood that. Obviously, rugby is totally different from chess. Those decisions are made by the appropriate bodies.

The Gender Recognition Act 2004, in combination with the Equality Act, currently defines someone’s legal sex as either the sex they were assigned at birth or the sex they have acquired through having a gender recognition certificate under the GRA. As I have illustrated, the Equality Act allows for different treatment of people whose legal sex has been acquired through a gender recognition certificate and people whose sex is assigned at birth, as long as the action is a proportionate means of achieving a legitimate aim.

If there is a change, as has been suggested, from the current definition in the 2010 Act to a definition based on biological sex, that would create a blanket ban on trans people from services that they had previously enjoyed without concern or complaint, even when it cannot be said to be a proportionate means of achieving a legitimate aim. The change would remove the current protection from discrimination for people in possession of a gender recognition certificate and undermine the Gender Recognition Act, leading to people being treated as if they had not changed their sex.

Unfortunately, this debate has often been portrayed as a matter of whether trans women should be allowed to use women’s toilets. First, we have had the GRA since 2004, and trans women have been using women’s toilets without complaint. Most of us have probably never even noticed. As we know, we have individual cubicles, so everyone has their privacy.

Even more unfortunately, there has been a conflation, even by Members in this debate, of a trans woman and somebody who is a criminal. We know perfectly well that there are police who are criminals and carry out heinous acts, but that does not mean that all police officers are criminals. It is exactly the same. Someone could impersonate a meter reader or a council worker, say, and go to a house to try to gain entry by false means. Why the idea that someone can dress up as a woman and therefore carry out whatever criminal act they intend to should determine how we decide to treat trans women is absolutely indecipherable to me.

To those people who genuinely feel that they do not want to discriminate against trans people, I want to make it clear just how hurtful that suggestion is to many trans people. They feel that they will be completely obliterated—that they will no longer exist, that they will no longer have the right to recognition. They have so many challenges in life—challenges with their family, challenges at work, challenges with their social life—

[Hannah Bardell]

I commend the hon. Lady for making a passionate and common-sense contribution to the debate. I am sure she agrees that some of what we have heard today is just feeding into the moral panic; some of the arguments are just cut and pasted from what gay and lesbian people faced decades ago. Does she agree, as a lesbian, that trans people do not threaten us? In fact, they enhance our existence.

[Dame Nia Griffith]

Absolutely. As a fellow lesbian, I absolutely agree with the hon. Lady; they are absolutely not a threat. More importantly than that, they need our support now more than ever.