The Supreme Court has spoken, it has now upheld the need to protect sex-based definitions where they are legally and materially relevant. This case came about because the Scottish Government attempted to bring in new legislation pertaining to the representation of women on public boards, for which it defined ‘women’ as also inclusive of biological men in receipt of a Gender Recognition Certificate. A grass roots group of women campaigners in Scotland challenged this specific new legislation as being of detriment to biological women. The case wound its way through the judicial process ending with the Supreme Court, the highest in the United Kingdom, offering a unanimous Judgement.
The Judgement specifically considered the definition of the word ‘women’ and ‘woman’ in relation to the Equality Act 2010 and specifically in relation to the protected characteristic of sex. The Judgment clarified existing law by confirming that:
- Where sex-based rights and representation are in play: sex means biological sex.
- A Gender Recognition Certificate, certificated sex, as they describe it, does not rewrite legal sex for every context within the provisions of the Equality Act 2010. Ergo where there are single sex exemptions or applications such as changing rooms, toilets, services such as rape crisis centres and for the protections in relation to prevention of discrimination of biological women who have pregnancy and breast-feeding protections the law as set out in the Equality Act 2010, pertains to biological women.
- Both sex and gender reassignment remain distinct, protected characteristics, and both must be treated accurately.
- Those who are already protected under the Equality Act protected characteristic for Gender Reassignment continue to have all these protections, so too they also have protections from discrimination based on sex as perceived.
There is a lot of misinformation, hyperbole and over complicating commentary online right now. The media are also fixated on toilets when the issues run much deeper. If you are reading posts that only take a view on this issue based on a single perspective, or on accessible toilet facilities, then I advise you to look elsewhere for support!
This is not about removing anyone’s rights. It is about affirming that sex, as a legal category, matters particularly in the context of women’s legal protections, services, and representation.
When the Scottish Government introduced their legislation and their interpretation of what the word ‘woman’ meant in the Equality Act 2010, their position effectively allowed a heterosexual male, diagnosed with gender dysphoria, receiving a Gender Recognition Certificate, to be legally classified as a lesbian. This means the Scottish law was creating a class of lesbian with male anatomy and unmooring lesbian rights in law from the concept of biological sex. It also meant that lesbians had no legal right to meet or associate without biological men present. The Supreme Court objected to this as part of its Judgement confirming that sex means biological sex and that sexual orientation means same sex attraction (lesbian or gay) or attracted to both sexes (bisexual). To create a new definition of the word ‘sex’ or ‘woman’ would be to erase the classification of same sex orientation.
As an employer or when running services, it is important that you appropriately attend to the legal requirements for all the protected characteristics within the Equality Act 2010 and not just some of them.
Consider the protected characteristic of religion or belief. If the word ‘woman’ or ‘sex’ was interpreted to also mean a biological man with a penis, this has fundamental implications for those with religious belief pertaining to single sex services such as Muslim and orthodox Jewish women.
In Brighton, where I live, a woman named Sarah, a rape survivor was forced to leave her group therapy because a trans woman (biologically male) was placed in her session. She never suggested that the trans woman not receive support she needed. All Sarah requested was that the service provide a space that was reserved for biological females as well as their existing services open to biological and trans women. They refused. She was told that her request is discriminatory to trans women. I will post a link to her legal case below. This is a misinterpretation and overreach of the hitherto muddied interpretations of the Equality Act 2010 and Gender Recognition Act 2024.
There have been systemic policy overreaches like this, including in prisons, disabled same sex intimate care services and those affecting the safeguarding of children, I shall write on this another day, having had personal experience of it.
Hopefully, now the Judgement clarifies the law and should prevent such over-reach from happening in the future, services such as these can make provisions for both biological women and trans women. If you are a biological woman who is thinking “well it wouldn’t bother me”, I respectfully say to you that we live in a world where our personal preferences are not always shared by others and the role of business and services is to act in accordance with law and accommodate to meet the needs of all staff, services users and customers. Sometimes these needs and wishes clash and complex trade offs and compromises will have to be made but now the law is clear about the parameters of those trade-offs.
It is possible to create a world that meets the needs of women and trans people equally, fairly and compassionately. It comes down to how well the law is applied and as importantly how well employers and those running businesses and services hold the conversation between those whose interests and rights connect or collide within their unique operating context.
At Fearless Facilitator we are global experts at navigating these tricky issues. Where courage meets culture we prevent, reduce and redress harm and support organisations to reach solutions that are both legally, ethically and culturally sound within their environment. We work with a network of legal specialists who can advise without rhetoric.
I do not describe myself as “gender critical”. I am a feminist, and I believe in equality, justice, and the dignity of difference. And I believe law should protect everyone clearly and fairly.
This article in the The Law Gazette is worth reading. Particularly around the implications for trans men and women historically and now in relation to equal pay claims.
Here is a link to the actual Supreme Court Judgement. Yes it is long, but for a Court Judgement it is well written in terms of clarity for those of us who are not lawyers.
Audrey Ludwig’s post on LinkedIn is exceptionally good advice to all those grappling with how to decipher latest Judgement and translate this in to policy.
Here is a link to an interview with Sarah whom I reference in my post.
The Equality & Human Rights Commission has released a statement on the decision which employers should read here. As the regulator for the Equality Act, the EHRC will now update its Code of Practice to take into account the ruling, and aims to present the new Code to Parliament before the summer recess. Employers should review their equality policies and practices in light of the decision and keep a watching brief on the updated Code.
Clear concise explanatory article from a Commissioner of the Equality and Human Rights Commission. Be careful of the rhetoric repeated on social media platforms including LinkedIn. Best to understand the law and its implications and seek impartial advice on your policy. We can help you navigate the is with your staff.