The UK’s highest court has unanimously ruled that the terms woman and sex in the Equality Act “refer to a biological woman and biological sex”.
The Government has said that the decision delivers “clarity” on the matter for hospitals and refuges of whether or not a person with a gender recognition certificate (GRC) identifying as female should be treated as a woman under equality law.
Justices at the Supreme Court ruled that a GRC does not change a trans person’s legal sex under the Equality Act. This means that transgender women with a gender recognition certificate can be excluded from single-sex spaces if deemed “proportionate”.
While Deputy President of the Supreme Court, Lord Hodge, said the ruling should not be considered a triumph of one group over another, activists for sex-based rights have celebrated the outcome as a victory.
Although the ruling does not erase all protections for trans people, trans campaigners have expressed fear and concern that it “undermines vital human rights”.
Here, The i paper looks at what that may mean in practice for transgender people.
Under current NHS guidance, transgender patients are entitled to be accommodated in single-sex wards that match how they identify.
But under the new ruling a person who was born male but identifies as a woman does not have a right to use a space or service designated as women only.
Chair of the Equality and Human Rights Commission (EHRC), Baroness Kishwer Falkner, said that the NHS will “have to change” their 2019 policy, which says that trans people “should be accommodated according to their presentation”.
She said the court ruling means there is now “no confusion” and the NHS “can start to implement the new legal reasoning and produce their exceptions forthwith”.
Officials said they were already updating the guidance but the judgment will be considered as they move forward.
Care minister Karin Smyth said the “NHS will obviously be complying” along with “every other public body”.
She said she hopes the ruling will draw a line under arguments over gender recognition, but accepted more “homework” needed to be done on what it will mean in practice.
Sports
Many UK sports – including athletics, cycling and triathlon – already bar anyone born male from competitive female events but football still permits trans women to compete alongside and against biological women if they reduce testosterone levels.
Baroness Falkner said that the law is now clear that trans women cannot take part in women’s sport.
Su Wong, from the campaign group Seen in Sport, said: “This applies to all women and girls, not just at elite level, so this should mark the end of ‘two-tier’ sports policies. This ruling means that women will no longer be sanctioned and punished if they raise concerns that there is a male in the female category.”
Sports governing bodies such as the Football Association face the threat of constant legal challenges if they do not update their policies on transgender inclusion, former FA chairman Lord Triesman has warned.
The ruling clarified that an exemption within the 2010 Equality Act permitting the lawful exclusion of competitors from “gender-affected” sports based on their sex was “plainly predicated on biological sex”.
Baroness Falkner said “single-sex services” like changing rooms “must be based on biological sex”.
“If a male person is allowed to use a women-only service or facility, it isn’t any longer single-sex, then it becomes a mixed-sex space,” she told the Today programme.
“But I have to say, there’s no law that forces organisations, service providers, to provide a single-sex space, and there is no law against them providing a third space, an additional space, such as unisex toilets, for example, or changing rooms.”
Asked about the risk that trans people will no longer be allowed to use facilities designed for either male or female people, she added trans rights organisations should push for more neutral third spaces to accommodate trans people.
She said: “There isn’t any law saying that you cannot use a neutral third space, and they should be using their powers of advocacy to ask for those third spaces. But I think the law is quite clear that if a service provider says we’re offering a women’s toilet, that trans people should not be using that single-sex facility.”
However, care minister Smyth was unable to say which changing room a transgender woman should use on Thursday.
“Look, I think we need to make sure that in this discussion we are following both the law so that is clear for women and for service providers and you know…this varies upon what the provision of those service providers are. Large organisations, smaller organisations, many smaller organisations”, she told Times Radio.
Asked why it varies, Smyth responded: “Because some will have unisex provisions there might only be one bathroom, one changing room in an organisation. It’s a large complex issue so that’s why people have to be very clear on that guidance.”
Schools and colleges
Sarah Phillimore, a barrister who has worked on several gender-critical legal cases, told The Times that the ruling will enable single-sex schools to be clear on their admissions policy.
Jo Moseley, an employment law specialist at the law firm Irwin Mitchell, said that the ruling will make it easier for employers to have clarity on the rules regarding single-sex and separate-sex services.
She said: “Ultimately this decision gives employers much needed legal certainty and will help them to make legally compliant decisions.”
Legal experts have also said that the ruling will make it easier for companies to advertise roles which are for people of a particular sex when this is a key factor of the role.
Moseley said: “In most cases you cannot restrict applications for a job vacancy to people with a particular protected characteristic, such as to women. You should just appoint the best person for the job.
“However, the Equality Act 2010 contains exemptions to this general rule: it recognises that, in some situations, employers can, and arguably should, discriminate in favour of a particular group of people both in terms of deciding to whom it is going to provide services and who it engages to work in those services.”
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Audrey Williams, who is an employment partner at Keystone Law, said: “The risks for employers often arise around harassment and where hostile or inequitable treatment occurs against a trans person. For example, where a male to female trans employee is treated less favourably than a biological woman.
“Another example is where comments made about her, or her appearance, are linked to her trans status.”
However, she added: “It is important to remember though that the Equality Act already prohibits discrimination against a person linked to their trans status, and this includes the fact they are going to transition their gender, are proposing to do so or have completed that process.”
The fact that being transgender is a protected characteristic means that this group should still be protected against harassment or discrimination, which could be deemed unlawful.
Data collection
It is now thought that organisations will now more often opt to collect data on biological sex rather than gender.
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