On 16th April the UK Supreme Court ruled that, for the purposes of the Equality Act 2010, the term “sex” (and the terms “man” or “woman”) should be understood to refer solely to “biological sex”. That is to say, sex as originally recorded at birth on a person’s birth certificate.
The ruling followed a case brought by For Women Scotland, a “gender critical” campaign. The group challenged legislation introduced by the Scottish Parliament, which allowed trans women with a Gender Recognition Certificate to form part of the 50 per cent quota of women required on public boards in the country. The legal action had the financial support of billionaire author JK Rowling.
Indeed, until last week’s ruling, the term “sex” under the Equality Act 2010 was understood to include trans people with a Gender Recognition Certificate. This is because the Gender Recognition Act 2004 (GRA), which introduced such certificates, states that upon acquiring one a trans person’s sex becomes their acquired sex (the sex they have transitioned to) “for all purposes”.
Obtaining a Gender Recognition Certificate is a difficult process. Certificates must be approved by a Gender Recognition Panel of medical and legal experts. Applicants must, among other things, show a documented diagnosis of gender dysphoria and prove that they have lived as the gender they are transitioning to for a period of two years.
The GRA was brought into force in 2004, after a trans woman sued the UK government two years earlier. In 2002 Christin Goodwin challenged the government’s failure to legally recognise her as female. The court concluded that the “anomalous” position trans people were placed in, where their legal status conflicted with the “social reality” of their lived gender, was one “in which he or she may experience feelings of vulnerability, humiliation and anxiety”. The European Court of Human Rights held that this amounted to a violation of Goodwin’s right to privacy under Article 8 of the Human Rights Act 1998. The decision led to a change in the law and the enactment of the GRA.
In its recent judgment, however, the Supreme Court held that despite the GRA coming into force several years before the Equality Act, parliament could not have intended the GRA to apply to it. In its reasoning, the court suggested that it was necessary to understand men and women as defined by their biology for purposes such as deciding whether a person has faced discrimination because of pregnancy or sexual orientation. The Supreme Court also considered that a biological definition might be necessary, for example, to understand the different risks posed by male and female drivers. Therefore it said that taking “sex” to mean “biological sex” was the correct interpretation for the Equality Act as a whole.
In the 88-page judgment, the court insisted that its ruling would lead to no reduction in rights for trans people, but this does not seem accurate. For example, trans women will no longer be able to bring equal pay claims against their male colleagues—despite research indicating they are being paid, on average, even less than other women when compared to men. This is because, according to the judgment, trans women are also “biologically male”. The court justified this on the basis that some trans men, being "biologically female”, may now be able to bring equal pay claims citing male colleagues instead.
Previously under the Equality Act, although it could be lawful to exclude trans women with a Gender Recognition Certificate from female single-sex services and spaces, this could only be done if it was shown to be a proportionate means of achieving a legitimate aim. This might include, for example, excluding trans women from accessing gynaecological services they would not need to access.
Now, it seems that as long as setting up a single-sex service is itself justified, then the exclusion of trans women from that service will be automatic. The court also noted that the exclusion of trans people from services which match their sex recorded at birth may also be justified due to how they look. For instance, trans men will be unable to use male services (because their original birth certificate recorded them as female), but they may also be unable to use female ones on the basis that they appear too masculine—if that is proportionate under the law.
This potential exclusion has been justified by activists such as Maya Forstater, the founder of the Sex Matters campaign group. She said on X: “Not being allowed into the men’s by rule does not mean you have the right to go into the ladies’ (and vice versa). That may seem unfair, but these are life choices people make. If you make extreme efforts to look like a man don't be surprised if you are denied entrance to ladies’.”
In the aftermath of the ruling, trans people fear that where unisex services are not provided they may be unable to access services at all, or that they will be in danger when doing so. This point was emphasised repeatedly by trans people at protests across the country since the ruling.
There are also concerns that the Supreme Court ruling may be incompatible with the decision of the European Court of Human Rights (ECtHR) which led to the creation of the GRA in 2004. This is because the European court held that the placing of trans people in an “intermediate zone”, where they are treated as having a different sex for different purposes, was unacceptable and a violation of human rights. It could be argued that the recent ruling has returned many trans people to this state of limbo. The Good Law Project, a legal campaign group, has created a “fighting fund” to attempt to challenge the new interpretation of the Equality Act all the way to the ECtHR.
Although the government has continually emphasised the “clarity” brought by the ruling, many complexities and misunderstandings remain. Following the judgment, for instance, Keir Starmer stated that trans women are not women. This is simply wrong in law. Although the Supreme Court held that for the purposes of a single piece of legislation (the Equality Act) sex should be defined “biologically”, the GRA still applies in the vast majority of contexts. Trans women with a Gender Recognition Certificate are, and must be, recognised as women for most legal purposes, including marriage or civil partnership.
Starmer’s remarks are “disappointing from a former human rights lawyer”, Oscar Davies, an employment and discrimination barrister, told me. “You would have thought he would make it clear that, following the SC judgment, a biological woman is only ‘biological’ as per the Equality Act 2010—it does not include other legislation.”
Confusion is also evident elsewhere. Bridget Phillipson, the education secretary and minister for women and equalities, has stated that trans people must use toilets which match their “biological” sex. In an “interim update” published on Friday night, the Equality and Human Rights Commission (EHRC) outlined its initial interpretation of the judgment, in advance of guidance expected to be laid before parliament ahead of the summer. The EHRC said that while workplaces are required to offer single-sex facilities, public-facing services are not required to do so. Where these are offered as single sex, this must be on the basis of biological sex. The EHRC has also said that associations for lesbians and gay men must exclude trans women and trans men, respectively, as members. Jonathan Sumption, a retired Supreme Court judge, has suggested, meanwhile, that a service can be single sex without excluding trans people. It seems, then, that this area of law remains contested.
When questioned in parliament on 22nd April about the various practical implications of the judgment, Phillipson told MPs they would need to await the EHRC’s forthcoming guidance. One such query came from Meg Hillier, Labour MP for Hackney South and Shoreditch, concerning a constituent who transitioned in the 1970s and has been using women’s toilets for most of her life. Responding to Phillipson, the constituent in question, Roz Kaveney, told me: “I will go on using the women’s bathrooms, as I have for most of my life. I am a frail old woman, if people want to physically manhandle me, then fine.”
Outside of the impact on the trans community, there are other practical concerns about operating services such as toilets as single sex on the basis of biological sex. For example, it might make it impossible for a single father to take his daughter to the women’s toilet, or for a mother to take her son in with her. It could also lead to increased policing of bathrooms in order to verify biological sex. This would disproportionately impact those, such as butch lesbians, whose appearance might be considered insufficiently feminine.
The EHRC guidance is likely to seek to define how many of the services affected by the Supreme Court judgment will operate in practice. In the meantime, service providers are adopting conflicting approaches. For the trans community, it is now a matter of waiting to see just how much their rights have been reduced.
