Sex matters, but the perception of sex matters also
This piece was adapted from my response to the EHRC consultation on the draft code of practice for services, public functions and associations following the UK Supreme Court ruling on the meaning of sex in the Equality Act. The consultation closed on 30 June 2025.
My concern is that policy must be workable and it does not deny common sense. Any policy that compels human beings to deny the evidence of their own eyes will lead to aburdities that will eventually discredit the policy.
My answers are to questions posed by the EHRC
Question 5: The explanation of the updated legal definition of sex is clear.
I strongly disagree.
The Supreme Court ruled on the definition of legal sex for the purposes of the Equality Act. Elsewhere in existing legislation, Subsection 9.1 of the Gender Recognition Act 2024 states that:
“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
Gender Recognition Act 2004, subsection 9.1
On that reading, legal sex can be changed by a Gender Recognition Certificate. While Subsection 9.3 states that 9.1 is subject to other enactments (e.g., the Equality Act), the scope of the Supreme Court judgment was limited to the Equality Act itself. There is therefore no rationale to extend the judgment to define legal sex for all purposes.
I would therefore suggest that the EHRC avoids trying to define legal sex, and instead refers to “Sex for the Purpose of the Equality Act”, i.e., “Sex for the purposes of the Equality Act 2010 is the sex that was recorded at your birth.”
That statement is clear and accurately reflects the judgment of the Supreme Court. As such, it would be more resistant to future challenge.
Question 9: The explanation of the legal rights and responsibilities set out in the new content on asking about sex at birth is clear.
I disagree.
My concern is where there is genuine concern about the accuracy of an individual’s assertion of their birth sex. It is acceptable to ask to see a birth certificate as proof of sex, though – as the draft concedes – “If a person has a Gender Recognition Certificate (GRC) they may have obtained an amended birth certificate in their acquired gender.”
The following sentence is unhelpful: “In the unlikely event that it is decided that further enquiries are needed, such as confirmation as to whether a person has a GRC, then any additional requests should be made in a proportionate way which is discreet and sensitive.”
How should these enquiries be made? Section 22 of the Gender Recognition Act states that,
“It is an offence for a person who has acquired protected information (i.e., about whether an individual has a GRC) in an official capacity to disclose the information to any other person.”
Gender Recognition Act, section 22
Service providers would therefore be left in a bind where officials would be unable by law to advise them whether their suspicions about someone’s actual birth sex were true or false.
An alternative approach could be for the Registrar of Births to issue statements to verify that an individual had not been issued with a GRC. That is not prohibited by the Gender Recognition Act. Service providers could deny service to those who could not produce such a certificate.
Such a system would offer a potential route for service providers to verify birth sex in situations where it’s a legitimate requirement under the Equality Act, without forcing officials to break the law.
Question 13: To what extent do you agree or disagree with the following statement. “The explanation of the legal rights and responsibilities set out in the updated description of the protected characteristic of sexual orientation is clear.”
I disagree.
The definition of sexual orientation must recognise perception of sex. Gay men are sexually attracted to people they perceive to be men, and lesbians are sexually attracted to people they perceive to be women. The emotions arise inside someone in response to perceptual cues from someone else.
A gay man is still a gay man if he is sexually attracted to a transman who exhibits the sexual cues of the male sex. Similarly, a lesbian is still a lesbian if she is sexually attracted to a transwoman who exhibits the sexual cues of the female sex. Neither becomes bisexual as a result of the sexual cues exhibited by others.
Without that being recognised, an individual’s sexual orientation would be dependent on how other people present themselves. That would be absurd.
Question 16: To what extent do you agree or disagree with the following statement. “The explanation of the legal rights and responsibilities set out in the new example on sex discrimination by perception is clear.”
I strongly agree.
The purpose of the Equality Act is to protect individuals being treated less favourably on account of protected characteristics. Discrimination by perception is less favourable treatment, and therefore discrimination.
Question 22: The explanation of the legal rights and responsibilities set out in the new example on women-only associations is clear.
I disagree.
Women’s associations are unable to verify accurately the birth sex of transwomen with GRCs. To enable them to proceed with confidence, some mechanism needs to be provided.
For example, the Registrar of Births could issue statements to verify that an individual had not been issued with a GRC. That is not prohibited by the Gender Recognition Act. Women’s associations could deny access to those who could not produce such a certificate.
Otherwise, there may be unresolvable deadlocks where the association could not prove that an applicant was not telling the truth about their birth sex.
Question 25: The explanation of the legal rights and responsibilities set out in the updated section on competitive sport are clear.
I disagree
Sex observed and recorded at birth is a crucial factor in ensuring that sporting competitions are fair. Sexual development differs before birth where boys and girls experience different levels of testosterone in utero. That affects both physiological and psychological development. It should not be necessary for organisers to prove a competitive advantage when excluding transwomen from women’s categories. As an example, a women’s chess competition should be able to prevent transwomen from taking part without having to prove that the male sex has a competitive advantage over the female sex.
However, they do need to be able to verify accurately the birth sex of transwomen with GRCs. To enable them to proceed with confidence, some mechanism needs to be provided. In the case of sporting bodies, it would be reasonable to request a cheek swab from competitors.
There also needs to be clear distinction between mixed-sex activities where everyone competes on the same basis – e.g., a cricket league open to teams fielding either men, women, or a mixture of both – and mixed-sex activities where the two sexes have different positions – e.g., mixed doubles in tennis.
Question 28: The explanation of the legal rights and responsibilities set out in the updated section on separate and single-sex services for men and women is clear.
I disagree.
Separating services by sex is only permitted where it is a “proportionate means of achieving a legitimate aim”. Where the legitimate aim is to protect decency and dignity, sex matters, but perceived sex matters also.
Policies that demanded women’s services include all transwomen led to outrages – and became absurd – when they demanded that service providers include people who were widely perceived to be men. Eventually, those policies became unworkable.
Policies that demand women’s services exclude all transwomen would lead to different kinds of problems. Firstly, a transwoman (with or without a Gender Recognition Certificate) who is widely perceived to be a woman is unlikely to be challenged in any case. Those with a GRC who are not perceived to be women can obstruct the service provider by refusing to state accurately their birth sex. As the law stands, there is no mechanism for service providers to verify someone’s birth sex if they have been issued with a GRC.
Perception is recognised by the Equality Act, and the provision of services would be more manageable if perception could be included in service provision.
So, for example, a service provider could argue that it was a proportionate measure to restrict a service to women – i.e., those whose birth sex was female. That might be the case for a rape crisis centre, for example.
Another service provider could argue that it was a proportionate measure to restrict a service to those who were perceived to be women. That might be the case for a changing room where transwomen whose bodies have been medically and surgically altered are less likely to disturb the peace than those whose bodies have not been.
Allowing service providers to choose to separate their services according to perception would remove the need to verify anyone’s birth sex. Indeed, this is the method that is in effect already used routinely in most everyday situations. Policy would be more robust and less likely to lead to absurdities if perception was recognised and acknowledged.
I gave the same answer to Questions 32 and 35. I considered that my response addressed all three questions.
Question 37: The explanation of the legal rights and responsibilities set out in the updated section on separate or single-sex services in relation to gender reassignment is clear.
I disagree.
Separating services by birth causes difficulties for trans people who are widely perceived to be the opposite sex. The draft acknowledges this point when it is considered proportionate for a service provider to exclude a transman from a women’s service because the transman is widely perceived to be a man. The reverse situation (regarding transwomen who are widely perceived to be women) raises the same issues of dignity and decency.
Trans people who are widely perceived to be the opposite sex could continue to use the services provided for the opposite sex without causing alarm or discomfort. Indeed, I suspect that this will happen, whatever official guidance might suggest or require.
While service providers should have the right to restrict services according to birth sex, in practice it is difficult to verify someone’s assertion of their birth certificate. The draft offers no method for doing so beyond “further enquiries” and “additional requests” (paragraph 2.2.8).
Service providers have previously demarcated their services by perception: how individuals are perceived by the service provider and other service users. Acknowledging and supporting that approach would provide an alternative criterion for service providers to demarcate their facilities. It would also allow a means to challenge individuals, and provide a reason for excluding them. For example, “the other service users perceive you to be the opposite sex and your continued presence risks causing a breach of the peace.”
Question 40: The explanation of the legal rights and responsibilities set out in the updated content on communal accommodation is clear.
I disagree.
It’s problematic for trans people who are widely perceived to be the opposite sex to share sleeping accommodation with their own sex. If their bodies have been medically and surgically altered to resemble the opposite sex, then the issues of dignity and decency affect both the individual and other service users.
In some cases, the individual would cause less surprise and alarm by using the accommodation designated for the opposite sex. Consequently, that practice is likely to continue. However, a more robust alternative is needed. In the case of trans people who resemble the opposite sex, service providers should offer private facilities on the same terms as communal facilities, unless they can show that it’s not proportionate for them to do so.
Question 42: Do you have any other feedback about the content of the Code of Practice that you have not already mentioned?
Sex matters, but perception of sex matters also. In some cases, perception matters more, and good policy would recognise and acknowledge the consequences for human society.
Debbie Hayton, 29 June 2025
Debbie Hayton 
10 replies on “The EHRC Code of Practice must work in real life”
I haven’t delved into the nitty-gritty of the legalese or the biology, but it strikes me that ‘birth sex’ is an ambiguous term, because it’s not clear whether it means the sex recorded at birth or the more scientifically correct biological sex, which in rare instances is different, and may come to light over time. I believe biological sex is always discernable, given enough investigation.
Perhaps nowadays doctors are quicker to do those deeper investigations (e.g., genetic testing) in cases where a newborn’s genitals are ambiguous, and I wonder if it might be something they could do routinely to give an undeniable, objective certification. This would also have the advantage of picking up those disorders of sexual development where genitals are clear but contradictory of the sex.
This bears on my view that all the above complications and absurdities would be removed if society recognised biological sex as the only valid sex/gender class in all instances. Legal concepts that are objectively demonstrable are better, on the whole, than those that are subjective.
I know this might suggest complications in some social contexts where perceived sex is unclear or converse, but if there are grounds for exceptions in sex segregation, suitable provision can be made without redefining the identity of the person and thus breaking the clarity of the legal and factual classification. Instead of gender recognition certificates, which can conjure the legal fiction that the person is the opposite sex, a person might – for whatever reason – apply for a document granting dispensation from particular strictures.
This might also seem trivial, a distinction that makes no difference, but it is very important, especially as Western cultures have fallen so far into utter confusion on these issues, and people – especially children and young people – are vulnerable to the belief that they have a choice about which sex to be, or which ‘gender’ to ‘live as’ (the former an impossibility; the latter a life pretending).
As I’ve said here before, emphasizing subjective judgement of ‘presentation’ and granting legal sex conversion on the basis of it suggests that if one ‘passes’ well enough one becomes the opposite sex, adding incentive to those getting caught up in gender ideology to go further in their body modification. Since transgender interventions of any kind involve harm to the individual, from increasing mental health problems in ‘social transition’ (including further gender confusion toward chemical and surgical interventions) to serious medical complications, we should do all we can to undermine these fantastical ideas.
The idea that passing is the same as being lies behind so many ills of our modern culture, from the best-self social-media avatars we create to the identically fabricated exaggerations of womanhood and manhood we see everywhere on our city streets. We are becoming hollowed out, empty mannequins performing our mythic identities, as desperate to solicit the appearance of admiration from others as politicians are to win votes. This – fighting ourselves and trying to be what we think we ought to be, instead of facing and befriending who we are, physically, objectively, warts and all – is the deeper sickness behind transgender issues.
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Throughout history, sex has been observed and recorded at birth. That’s what people mean when they use the word sex – that observed reality that everyone in the room agreed upon. I don’t think that evolved instinct can be changed, as – I think – the gender identity crew have now discovered.
Personally I have no interest in getting a gender recognition certificate. But I do know of a transwoman who has been married to a man for a long time. Husband knows the history, but his family doesn’t and he doesn’t want them to know. In that case the privacy afforded by the GRC is useful. Life is messy sometimes; good law and policy lets people get on with their lives.
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I recognise there have to be trans-grandfather/mother clauses (and nobody’s going to take much notice of my views anyway, so my preferred outcomes for the gender wars are somewhat moot), but ideally, in the future, I believe sex and gender definitions in law should refer to biological sex. This is quite common in law, to apply a change from the date the law passes without affecting events prior.
But we shouldn’t take science seriously only when it suits us, and the biological definition of sex is distinctly NOT “what everyone agreed at birth based on genitals”. The biological, scientific definition, as you know, is based on the developmental path towards small or large gamete production, which, as you also know, is binary and immutable.
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I actually agree with you about how things ought to be. I just don’t think that we are ever going to successfully redefine the terms away from perception. We all know the difference between men and women – we use an evolved instinct that has served us well since the dawn of history. Other species continue to use the same evolved instinct to distinguish the two types of their own kind.
Evolved instinct is a scientific idea.
My hypothesis is also robust against future developments. Who knows what medicine will be able to do in the future but, while very rich men want to transition, I suspect that gender reassignment procedures have much further to go. But whatever people do with their bodies we will still perceive them to be men or women.
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I’m glad you agree about how things ought to be. I said, “in the future, I believe sex and gender definitions in law should refer to biological sex,” so you agree with that.
I also agreed all along (since several articles back) that people will perceive things however they perceive them, but – apparently contrary to your view – sometimes they will be wrong. Males will sometimes be thought to be female and females will be thought to be males. Incorrect perception is a simple fact of life.
That part I find weird, and on which you seem to just keep going round and round in circles on, is that you don’t seem to consider those perceptions as wrong: you appeared to define a “woman” as a person who is (mostly?) identified as an adult human female, because instinct.
That divides the usual classification of woman=female and man=male, and you actually stated there could be male women and female men on those grounds. I submit this is just ridiculous. Instead of breaking that definitional concordance, just admit that being perceived as a woman by someone (or even EVERYONE) does not a woman make.
I have no idea why you keep doing this. I thought it was because you clung to the delusion that, despite being male, you’re a ‘male woman’, but after pushing you on that, you denied even that. How much further must this go before you recognise and correct your cognitive dissonance? You’ve even suggested that you’re very commonly identified as a woman by others, so by your reckoning I would have thought that would make you a male woman.
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I’m making the point because I think that when people use the words ‘man’ and ‘woman’ (and ‘he’ and ‘she’) they are referring to their perceptions of male and female. It’s not something I am trying to prove by argument, rather I had made a hypothesis for the future to test. That is the scientific approach.
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No, the “scientific approach” is to increase human knowledge, to reveal likely facts about ontology. It uses the scientific method (hypothesis development and testing) as a means to that end. This is why I have been happy to agree with your hypothesis – people will always continue to call things what they perceive them to be – and to point out that this is not a useful hypothesis because it reveals nothing other than a trivial fact about human perception of categories. It is not useful because it says nothing about ontology, since our observation is sometimes concordant with facts and sometimes mistaken.
If I made any such hypothesis, similarly disconnected from reality, e.g., that people in future will refer to the sea as “the ocean”, it doesn’t make any difference whether it turns out to be true or false, for the same reason: it merely states how people will use words.
What I’ve been trying to dig into is what, if anything, you think is at all important in the political, legal or social spheres where our labels might have good or bad consequences. You must forgive me for making certain assumptions from the way you began saying this, particularly using the attribution, “male woman,” in combination with several statements about how you personally were (you thought) perceived as a woman despite being, in your own words, “male.”
Until you specify in what way the mistaken identification of a person should affect the sociopolitical world, I’ll just continue to be confused and irritated, and that tends to keep me asking questions.
Could you tell me what difference your hypothesis makes, whether the future proves it true or false? Does it say anything ontological other than about how human perception functions? Does it imply any legal position a government should adopt, etc.?
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My hypothesis is that when people use the words ‘man’ and ‘woman’ (and ‘he’ and ‘she’) they are referring to their perceptions of male and female. My proposed test is how they will relate to humanoid robots. If they refer to them as ‘he’ and ‘she’, and treat them differently according to their perceptions (for example android robots would be required to change their clothes in the men’s room and not the women’s room) then my hypothesis would be supported.
That is the scientific approach.
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I wonder, Debbie what part you think organisations like Stonewall have played in this, to my mind, deliberate confusion whilst hiding behind the human rights banner? The ability to change ones birth certificate should never have been allowed in my opinion. If a persons appearance does not match their stated sex on documents such as passports an addendum can be added as in (lives as a woman/man). This could then be a definition. So and so lives as a woman/ man. That is presuming that the general feeling is that this is a perfectly rational decision and not a mental health problem. The examples always given are anorexia – something we attempt to cure rather than encourage and body dysmorphia – we don’t remove limbs just because patients turn against them. But sex organs, well that’s ok apparently.
If an operation had not been available to you do you think you would have continued to live as a man? I hope you don’t mind such a personal question but I just wonder how much this movement has been influenced by the medical profession.
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I’m upset by Stonewall (and others) who have tried to re-engineer human society and human relationships. Just like in the past, these things cannot be re-engineered. We are not blank slates, we are evolved animals. But again, like in the past, too many people get hurt when people try to re-engineer things. In this case, women, children (appallingly) and – I would argue – transsexuals who were quite happy living their lives before about 2014.
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