Equalities watchdog warns that plan to allow any Senedd candidate to self-identify as a woman is unlawful

Martin Shipton

The UK’s equalities watchdog has warned the Welsh Government that it does not have the power to allow anyone to self-identify with their chosen gender at Senedd elections.

As part of its Senedd reform agenda, the Welsh Government plans to legislate to ensure the body is gender balanced by law following the next election in 2026. This would be achieved by introducing a mechanism aimed at electing 50% of MSs who are female and 50% who are male.

One clause of the Bill would allow any candidate to self-identify as a woman, regardless of their legal sex.

Now, however, the interim chief executive of the Equality and Human Rights Commission (EHRC) has written to the Senedd committee scrutinising the Bill to say that the way the self-identifying clause has been drafted is likely to be unlawful.

Unique powers

The letter from John Kirkpatrick states: “The EHRC has been given powers by Parliament to advise governments on the equality and human rights implications of laws and proposed laws and to publish information or provide advice, including to the Senedd on any matter related to equality, diversity and human rights.

“We enforce the Equality Act 2010 and have unique powers to investigate when the law isn’t followed.

“We welcome the opportunity to respond to the Committee’s consultation on the Senedd Cymru (Electoral Candidate Lists) Bill (the Bill). Given the tight timescale of the consultation period, we are unable to respond in full and we would be keen to engage with the Committee/s as the Bill progresses.

“Tabled by the Welsh Government, following the Special Purpose Committee on Senedd Reform’s recommendations, The Senedd Cymru (Electoral Candidate Lists) Bill’s Explanatory Memorandum clarified that ‘The Bill will introduce integrated statutory gender quotas’ and ‘the Bill aims to ensure the Senedd is broadly representative of the gender make-up of the population”.

“We would draw the Committees attention to s104 – Selection of Candidates of the Act. This allows a political party to tackle a lack of diversity among its elected representatives by putting in place selection processes that will help to address the under-representation of people who share a protected characteristic as set out in the Act.

“We previously engaged with the Special Purpose Committee on Senedd Reform and provided written and oral evidence in early 2022. We clarified that in relation to addressing the under-representation of women, the relevant protected characteristic in the Act is sex, not gender. As defined in s11 (a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman

“The protected characteristic of ‘sex’ refers to a person’s legal sex, as stated on their birth certificate or as acquired through obtaining a Gender Recognition Certificate. Further to our evidence, the Scottish Court of Session Inner House gave judgment in a case which determined that ‘sex’, for the purposes of the Act, is not determined by ’self-identification’.

“Whilst it is to be noted that Scottish judgments are not binding on courts in England and Wales and that the judgment is currently under appeal to the Supreme Court, we consider it the leading authority on the point.

“The Explanatory Memorandum mentions the term ‘sex’ once and this is to reference the protected characteristic as set out above. Gender is otherwise the term used throughout. Whilst the Bill itself refers to ‘women,’ which is consistent with the terminology of the Act, the repeated use of ‘gender’ throughout the Explanatory Memorandum may give rise to confusion about how this is defined and may lead to inconsistency with the principles of the Act.

“In particular, we are concerned that the Bill appears to base eligibility for inclusion on the quota list, on candidates’ declarations of whether or not they are a woman, and this in conjunction with the term ‘gender’ may be insufficiently clear. In short, it may lead to the inclusion of quotas based on a person’s self identified gender as opposed to their legal sex, and may therefore be inconsistent with the Act.

“We were encouraged that an Equality Impact Assessment accompanied the Bill. However, there is a lack of detail as to why gender was used as a term rather than sex, and a lack of analysis of the potential impacts of this. It is unclear how the proposed ‘gender statements’ would work in practice. If they mean self-identified gender, this is unlikely to be lawful as not all those who self identify as women will be considered to legally be so under the Act. If ‘gender statements’ refer to a statement of one’s legal sex this should be made clear.”

‘Lack of understanding’

The letter concludes: “The provisions in this proposed legislation that concern us as the regulator of the Act may have arisen from a lack of understanding of the Act. We strongly recommend that the Reform Bill Committee engages with the Commission so that we may assist in clarifying how the Act applies in the context of this Bill.”

Gender critical women’s groups in Wales have indicated that they would pursue legal action aimed at blocking any move to allow trans women without a Gender Recognition Certificate.

While Elin Jones, the Llywydd (Presiding Officer) of the Senedd, has stated that she does not consider the Bill to be within the Senedd’s competence because equality legislation is reserved to the UK Parliament, the Welsh Government maintains it has received legal advice that its proposal is lawful.