The case that ended at the supreme court yesterday started as a question, posed by the gender critical group For Women Scotland, about whether trans women should be covered by Scottish legislation seeking to improve gender balance on public sector boards. But the ramifications are much wider, because it turned into a more fundamental question about whether the protections for women in the 2010 Equality Act cover trans women with a gender recognition certificate.
That means the decision’s impact will be felt across England, Scotland and Wales (although not Northern Ireland, where the Equality Act does not apply). Libby Brooks has an excellent primer on the history of the case, and Jessica Murray has some of the reaction from both sides of the debate. Here’s what you need to know about the court’s reasoning and the practical consequences.
What the judgment says
In 2004, the Gender Recognition Act (GRA) of the British parliament said that trans people should be treated according to their “acquired” gender for all purposes, and created the gender recognition certificate (GRC) as a way to affirm that protection.
But the GRA also said this rule could be disapplied by specific reference in subsequent legislation, or if that legislation would be obviously unworkable. The 2010 Equality Act doesn’t deal with that point explicitly. To reach a decision on this case, the supreme court therefore had to rule on whether, if applied to trans women with a GRC, the protections against sex discrimination in the Equality Act would cease to function properly.
The court’s unanimous decision was that they would. The judgment said that “interpreting ‘sex’ as certificated sex would cut across the definitions of ‘man’ and ‘woman’ and thus the protected characteristic of sex”. And it said that “as a matter of ordinary language” the provisions of the Equality Act relating to sex discrimination against women “can only be interpreted as referring to biological sex”.
The court also said that using the GRC to define whether a trans woman should be granted the full protections of the act was impractical, given that service providers are not supposed to ask to see the document. And it said that from lesbian-only associations to changing rooms and single sex halls of residence, “a biological interpretation of ‘sex’ [is necessary] in order to function coherently”.
What it doesn’t say
One repeated claim in the aftermath of the verdict was that the court had upheld, and bestowed its authority upon, the contention that trans women are not women. The Conservative leader, Kemi Badenoch, said that it showed “the era of Keir Starmer telling us women can have penises has come to an end”. The biologist Richard Dawkins said that “the science was settled in the Precambrian [era]. Nice that the law has finally caught up.” One campaigner celebrating outside the supreme court held up a banner that read “Women are born, not some bloke with a form”. The Daily Telegraph’s splash headline today says bluntly: “Trans women are not women.”
But the court itself was emphatic that the judgment had no such grand ambitions; it added that the decision “does not remove protection from trans people, with or without a GRC”, because they are protected elsewhere in the Equality Act. Lord Hodge, deputy president of the court, said that trans people were a “vulnerable and often harassed minority” and added: “We counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.”
Instead, the issue in question was strictly “statutory interpretation”: the intended meaning of the Equality Act. As the judgment makes clear, if the Equality Act had explicitly said that trans women were covered by the protections it set out for women, the case would have failed.
It therefore follows that it would be possible for the government to change the law in response to the decision if it wanted to. More on the slim prospects of that outcome below.
Limits on the ruling’s impact
After the judgment landed, trans rights charity Scottish Trans urged people “not to panic – there will be lots of commentary coming out quickly that is likely to deliberately overstate the impact that this decision is going to have on all trans people’s lives”.
Trans women are still protected against discrimination on the basis of their being perceived as women, or as trans. The employment and discrimination barrister Robin White pointed out on BBC Radio 4’s PM that because excluding trans people is still only allowed if it is “a proportionate means of achieving a legitimate aim”, we are not likely to suddenly see security guards assessing people at the entrance to public toilets, to take one extreme example.
Another, bleaker gloss came from the writer Shon Faye, who noted: “Practically very little will change for most trans women, who have been dealing with a hostile environment in this country for many years.”
About 8,500 people have ever obtained a GRC in the UK, against a total current trans population, according to the Office of National Statistics and the Scottish census, of about 116,000 people. So a change applying to people with a GRC will not have a direct impact for the vast majority. Meanwhile, the domestic violence charity Refuge put out a statement saying that it remained “firmly committed to supporting all survivors of domestic abuse, including trans women”.
What is likely to change
It is also clear that the decision will ultimately have significant consequences. It offers clearer legal protection to any service for women wishing to exclude trans women, provided that it meets that test of proportionality – although, as the barrister Sam Fowles points out in this piece, such exclusions were already permitted. The Equality and Human Rights Commission is expected to issue new guidance before the summer. NHS England said that the judgment would affect its guidance on same-sex hospital wards; similar impacts are likely in some social groups, sport, and prisons. In each case, the same principle will govern the treatment of trans men.
Another practical consequence of the ruling: the judgment said that a problem with using the GRC as a way to define trans women covered by the Equality Act was that it would “give trans persons who possess a GRC greater rights than those who do not”. But in practice, what that meant was many trans women without a GRC were protected anyway, and it is still likely to be viewed as potentially discriminatory to ask for one. In some situations, the distinction now will be whether a trans woman can “pass” or not.
The court was also explicit about a further striking anomaly. Using the example of group counselling for female victims of sexual assault, it said that trans women can reasonably be excluded; but it also said that trans men can be excluded “because the gender reassignment process has given them a masculine appearance”.
What happens next
Some experts had suggested before the ruling was handed down that the court might punt the decision back to parliament. That would have been deeply unwelcome for Keir Starmer, with Labour viewing the issue as one where the Conservatives and Reform are able to paint the government as captive to the alleged woke mob, as with the long history of asinine gotcha questions about whether women can have a penis.
So the decision comes as a huge relief for the government – not that in practice it has done much to justify its characterisation as a staunch ally of trans people anyway. One government source told the Daily Telegraph: “This just shows why it was so important that Keir hauled the Labour party back to the common sense position the public take on these sorts of issues.”
That line, and the government’s welcome of the decision on the record, suggests that any idea the Equality Act might be updated to provide more robust protections for trans women is pie in the sky. Indeed, in February, Labour quietly shelved plans to make it easier for people to legally change their gender “amid concerns about the rising popularity of Nigel Farage’s Reform UK”.
In Scotland, meanwhile, the embattled Holyrood government is also unlikely to want to return to gender reform legislation. Once, the SNP proclaimed its position as a progressive beacon for the rest of the UK. Now, the political tides appear to have decisively shifted. Peter Walker and Severin Carrell have more on that here.
That gets at a possible wider consequence of the decision. Whatever the qualifications spelled out by the court, it is already being proclaimed as the day that trans women were declared not to be women. The wider social and political fallout from that interpretation may extend well beyond the narrow provisions of the law.
