The changes Kemi Badenoch wants to make to the Equality Act would allow organisations to openly discriminate against trans people, writes Will Cooling
Across Westminster, both parties have switched into election mode, as they prepare for next month’s local elections, the first electoral test since Boris Johnson stepped down as prime minister.
But there’s a lot of space between now and the next parliamentary ballot, giving the government the ability to, in theory, keep passing legislation deep into December next year. Actions taken late into a parliament can have profound consequences; Jim Callaghan secured a promise from the Americans to sell us Trident months before his government fell, whilst John Major’s privatisation of the railways was only completed the same year as Tony Blair entered Downing Street.
More recently, the Equality Act was only passed into law during the final days of the 2005-2010 Parliament. This act overhauled the patchwork of ad hoc equalities legislation, creating a unified system of nine protected characteristics against which people would be treated equitably in the provision of goods, services, and employment. It not only harmonised what is meant by discrimination across different characteristics but clearly codified the responsibilities of organisations to combat it.
This has led to Britain taking great strides towards becoming a more equal society over the past thirteen years, despite the governing party frequently striking a pose against what it would now dismiss as “wokery”. That the Tories began by sharing power with the Liberal Democrats and were then led by Theresa May who helped Labour pass the Equality Act, explains some but not all of this irony.
The reality is that legislation means a lot more to the lives of ordinary people, and the trading conditions of business, than whatever a minister says on television. It is why Kemi Badenoch, a rare example within today’s Tories of being both a culture warrior and a diligent minister, has made such an unusual and important intervention.
Back in February she asked the Equality and Human Rights Commission to consider whether the protected characteristic of sex should be redefined to exclusively refer to biological sex as a way of resolving what she saw as the ambiguity over the rights of trans people. Last week the Commission responded by agreeing with Badenoch that such a change may well be beneficial.
Ignore the mild-mannered legalese, what they are proposing is a radical change in the status quo. The Equality Act is indeed ambiguous about where the line is drawn between sex and gender identity, but that has meant trans people have had the greatest possible access to single-sex spaces. In those rare cases where something should be limited, the organisation that controls it must follow a robust process to demonstrate that the exclusion is a proportionate method in service of a legitimate need. The reason why trans people have been included in most single-sex spaces, is because organisation after organisation has not been able to meet that threshold.
What Badenoch and the Equality and Human Rights Commission are proposing would change all that. It would not just allow organisations to openly discriminate against trans people, but it would create a formal charter where any worker or customer could claim their sex-based rights were being impinged by the lack of measures to ensure trans people were excluded. Such measures would not only upend twenty years of progress towards trans equality, robbing people of civil rights that even today are supported by 64 per cent of all Britons according to the British Social Attitudes Survey. But it would also risk imposing significant costs on businesses, who in pursuit of a “papers please” faux feminism would be forced to monitor their workers and customers.
It would add further confusion to review one part of the Equality Act in isolation to everything else. Especially when this seems to be done out of discomfort with how ideas about gender have evolved as the act has been implemented, and social attitudes have changed. Laws, by their nature, are adapted and interpreted by bureaucrats and judges to meet the needs of ordinary people. Trying to reverse this for ideological reasons, would add further complexity and toxicity to the debate, not less.
It is therefore fortunate that time is against Badenoch. The Tories’ majority, whilst still large, has been whittled down by a series of scandals, by-elections and in-fighting which has left them badly divided. It would not be a simple task to pass legislation through the Commons, let alone the House of Lords where they have no majority, without Labour’s cooperation.
Keir Starmer will have many people advising him to swerve fighting a culture war by going along with Badenoch’s gambit. For all his faults, he should remember he is a lawyer and give a lawyer’s answer. He should insist that if the Equality Act is going to be reviewed, then all of it must be, with the aim being to enhance everyone’s rights, not solely to persecute one of the smallest minorities in British society.