(7) Sport: At present, to exclude trans women with a GRC from women’s sports, the organiser must show that it was necessary to do so in the interests of fairness or safety. A biological definition of sex would mean that organisers could exclude trans women from women’s sport without this additional burden.
(8) Data collection: When data are broken down by legal not biological sex, the result may seriously distort or impoverish our understanding of social and medical phenomena. A biological definition of sex would require public bodies like universities to apply this category, without the complexity added by a legal definition of sex, to the analysis of data collected in fulfilling the Public Sector Equality Duty.”
There are three areas identified by the EHRC where it suggests that a “change” to a biological sex interpretation would be “more ambiguous or potentially disadvantageous”. These are as follows, and we discuss each area further below:
“(9) Equal pay provisions: At present, a trans woman with a GRC can bring an equal pay claim by citing a legally male comparator who was paid more. A trans man with a GRC could not. The proposed biological definition would reverse this situation. The effect would be to transfer this right from some trans women to some trans men.
“(10) Direct sex discrimination: At present, a trans woman with a GRC can bring a claim of direct sex discrimination as a woman. A trans man with a GRC could not. The proposed biological definition would reverse this situation. The effect would be to transfer the right from some trans women to some trans men.
“(11) Indirect sex discrimination: At present, a trans woman with a GRC could bring a claim of indirect discrimination as a woman. A trans man with a GRC could not. The proposed biological definition would reverse this situation. The effect would be to transfer this right from some trans women to some trans men.…
On balance, we believe that redefining ‘sex’ in EA 2010 to mean biological sex would create rationalisations,
Page 78
