Thread by @RadFemLawyer

Here is my thread on sex and gender, and why public authorities are legally misguided to use gender instead of sex and/or to conflate the two terms.

#SexMatters

1. Section 11(a) of the Equality Act 2010 provides that a reference to a person who has the protected characteristic of sex is a reference to a "man" or a "woman".

You may think that man/woman sounds like it means gender, in the current societal sense?

2. But it does not, at least not in terms of the Equality Act 2010.

A "man" means a male of any age, and a "woman" means a female of any age — see section 212(1).

Male/female are sex-based biological, categories, are they not? (notwithstanding intersex conditions).

3. Further, section 4 of the Equality Act is rather clear. The protected characteristic is sex.

"Sex" thus equals male/female.

Gender and/or gender identity, do *not* appear in section 4. Gender reassignment status is also separately defined/protected.

4. To me, at least, it is noteworthy that the drafters of the Equality Act 2010 did *not* take the opportunity to substitute the word ‘gender’ for ‘sex’ in recognition of the increasingly popular use of the phrase ‘gender discrimination’ to describe discrimination based on sex.

5. It may have been felt that the word ‘sex’ connotes the physiology of being male or female, whereas the word ‘gender’ imports wider connotations such as societal assumptions about the roles of the sexes, thus giving the term a political and social dimension...

6. The Equality Act, nevertheless, opts for the word ‘sex’ when referring to discrimination between males and females.

This is important.

7. However, The Equality Act 2010 uses the word ‘gender’ when dealing with discrimination against trans people or those undergoing the process of gender reassignment. This is not actually surprising. It makes sense that gender applies here, as it perhaps ought to.

8. The Equality Act also contains provisions relating to the good old ‘gender pay gap’ in the context of the right to equal pay — see section 78. Perhaps because sex-pay gap didn't sound good.

So one can see why gender can sometimes wander in. But they are not synonymous terms.

9. Further, under the Public Sector Equality Duty (section 149 EA 2010), a public authority must have due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act; ...

9.(b)advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;(c)foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

"Protected characteristic"🧐

10. As I said, the 9 protected characteristics, including sex, and not including gender, are listed at section 4 of the Equality Act.

How can a public authority comply with their PSED if they don't know/understand the protected characteristics? That is concerning.

11. Also - The Equality Act 2010, Schedule 3, Part 7: separate, single and concessionary services etc. on single-sex services - this particular provision uses sex, not gender.

(See @fairplaywomen for more on that one.)

12. Also - per Schedule 16: associations: exceptions - Single characteristic associations

"1(1) An association does not contravene section 101(1) by restricting membership to persons who share a protected characteristic."

Those pesky "protected characteristics" again..!

13. TL;DR?

Sex ≠ Gender. At least not in law, anyway.

The protected characteristics matter. #SexMatters

The Public Sector Equality Duty matters.

/end