UK Supreme Court Ruling Is a Loss for Transgender People — and Women

The ruling makes trans exclusion easier and reinforces patriarchal stereotypes that harm women and trans people, especially the gender-nonconforming

Image courtesy of Jo Carver, CC0, via Wikimedia Commons

The UK’s Supreme Court has ruled that, under the Equality Act 2010, the UK’s main anti-discrimination law, transgender people are to be treated as their sex recorded at birth, even if they hold a gender recognition certificate (GRC) which changes their legal sex. The ruling comes after a long court battle between the anti-trans group For Women Scotland (FWS) and the Scottish Government over the inclusion of transgender women in legislation to ensure equal-gender representation on the boards of companies.

Until recently, guidance stated that trans people could use single-sex spaces according to their gender, except in individual cases where exclusion could be justified as a “proportionate means of achieving a legitimate aim”. This is the basis on which businesses and institutions have operated for well over a decade. This guidance was recently withdrawn, and the Supreme Court’s ruling seems to make it easier to justify blanket trans exclusion from single-sex spaces — though it doesn’t mandate it. What this means in practice is unclear, especially for certain spaces such as toilets, since there is no law stating they have to be for a certain sex, only social convention.

In addition to FWS, several other anti-trans women’s groups intervened in the case, including Sex Matters and the LGB Alliance. No trans-inclusive women’s groups were involved, nor were any trans groups or individuals. Stephen Whittle, a professor of equality law, and Victoria McCloud, a former high court judge, both of whom are transgender and hold a GRC, were denied the right to intervene without explanation. As lawyer Jolyon Maugham KC points out, the failure to include any trans representation in the case violates the legal principle of audi alteram partem — both sides must be heard.

The Equality and Human Rights Commission (EHRC), responsible for enforcing the Equality Act, also intervened. However, the EHRC has effectively operated as an anti-trans lobbying group since “gender critical” (a euphemism for anti-transgender) Baroness Kishwer Falkner became the organisation’s head.

Amnesty International also intervened, but seem to have been ignored. Aiden O’Neill KC, representing FWS, has a history of representing “gender critical” and anti-abortion groups.

The lead judge, Lord Hodge, was a former Lord High Commissioner to the General Assembly of the Church of Scotland and authored a homophobic report on same-sex relationships for the Church.

The lack of trans input and the influence of transphobic groups is clear throughout the judgement, which consistently uses “gender critical” language and at times reads like a press release from Sex Matters or For Women Scotland. Only it’s from the Supreme Court. If there is such a thing as “ideological capture”, then this is it, and it’s happened to the highest court in the land.

Transphobic “gender critical” groups and right-wing media are hailing the ruling as a victory for women, however, it’s anything but, since the ruling will likely lead to an intensification of the “gender policing” that trans people and cisgender women already experience at the hands of transphobes and misogynists, including those calling themselves feminists.

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But what exactly does the ruling mean? The following is based on analysis by transgender legal scholar Jess O’Thomson and other legal experts as well as my reading of the ruling, though to be clear, I’m not a lawyer or legal expert, but do have a background (PhD) in sociology and social policy and some experience of interpreting the law in that context. There is still debate about how the ruling should be interpreted, including disagreement over the claims being made by the EHRC and “gender critical” groups.

It's important to note that the ruling doesn’t define what “biological sex” means other than referring to it as the binary “sex of a person at birth” (i.e. what’s recorded on their birth certificate), and the “biological characteristics that make an individual a man or a woman”, which it does not elaborate on, stating instead that these are “assumed to be self-explanatory and to require no further explanation”.

That’s a questionable move, given the case is about defining what sex means in law.

Sex is complex and notoriously difficult to define. It can refer to any number of things — hormonal sex, gonadal sex, chromosomal sex, phenotypic sex — and a large number of characteristics that don’t always align in a binary way. This non-definition seems to have been left up to Sex Matters’ lawyer, Ben Cooper KC, who the judges thank for bringing “focus and structure to the argument that ‘sex’, ‘man’ and ‘woman’ should be given a biological meaning”. Like Aiden O’Neill, Cooper is associated with several other high-profile “gender critical” cases, including the Forstater case.

How the judges define womanhood and the oppression faced by women in the ruling is also problematic. They state that women face discrimination due to a “shared biological” disadvantage, implying that the source of women’s oppression is their supposedly inferior biology, rather than patriarchal systems and social norms. The focus later in the judgement is on women’s reproductive capacity, reducing women’s value to their ability to reproduce, while devaluing those women who can’t or have no interest in having children. The implication is that women should only be protected on the basis of their ability to perform “women’s labour”, that is, providing and raising children and performing their assigned domestic role, their main value under patriarchy.

The ruling also argues that including trans women with a GRC would make the group (“women”) “heterogeneous”. This implies that women are otherwise one homogenous group, an idea inherent to both patriarchy and the white feminism that serves it. Such an assumption universalises all women’s experiences, ignoring intersections like race and ethnicity, disability, sexuality, class, and gender identity. It’s regressive and harms all women because it assumes the experience of white, middle-class, able-bodied cisgender women is the experience of all women. It disregards the needs of all other women, while perpetuating classism, intersexism, cissexism, homophobia, ableism, and white supremacy, the latter of which is heavily linked to a universalised notion of womanhood.

The judges go on to imply that women and trans people experience distinct forms of disadvantage that don’t intersect, and therefore can't be grouped together. This categorises women entirely by their victimhood at the hands of men, as the defining characteristic of the group. And, while there are indeed unique, separate disadvantages that society imposes on trans people and cisgender women, this assertion denies the fact that transgender women often experience misogyny and sexism in the same way that cisgender women do, and share common cause on issues such as bodily autonomy (for example, in reproductive rights and access to gender-affirming care).

Despite these problematic definitions and non-definitions, the ruling states that “sex” in the Equality Act is to be understood as meaning “biological sex”, and that trans people with or without a GRC are to be treated as their “biological sex” for the Equality Act.

Melanie Field, a former civil servant and one of the architects of the Equality Act, has spoken out to say that when drafting the Act, the intent was that “sex” included the “certified sex” of a trans person with a GRC. Harriet Harman, the Labour MP who at the time brought the bill before parliament, has disagreed, though it’s hard to see how some of the single sex exemptions in the Act make sense if “sex” was always intended to mean “biological sex”.

It also means that a GRC and “certified sex” are irrelevant for equality law, but still relevant for things like marriage law. This places trans people in an intermediate position legally, which is the situation that led to the UK government being taken to the European Court of Human Rights, forcing them to create the Gender Recognition Act in the first place. Another trip to the European Court is possible, but this can take years, during which we will be left in legal limbo.

This change has been interpreted by some to mean that trans people can now more easily be legally excluded from single-sex spaces that don’t match their “biological sex”, on a blanket basis without having to prove that such exclusion is a “proportionate means of achieving a legitimate aim”. The ruling seems to state that excluding, for example, a transgender woman from a women’s single sex space is by default achieving a “legitimate aim” because the space is for “biological women”, which does not include trans women as per the ruling. The same seems to apply to single sex sports and clubs formed based on sex or sexuality (which I’ll get to shortly).

Whether the ruling mandates trans exclusion is unclear. “Gender critical” groups claim the ruling requires automatic, mandatory exclusion. Baroness Falkner has said the EHRC will release statutory guidance to that effect and will pursue the National Health Service if it doesn’t comply.

Some LGBTQ+ groups argue Baroness Falkner has overstepped in her interpretation of the ruling, and that the protections for transgender people under the Equality Act still include the use of bathrooms according to gender identity. Lord Sumption, a former Supreme Court justice, has spoken out about the judgment, stating that the ruling seems to allow the exclusion of trans women more easily, but that it is not obliged, meaning it is still up to businesses and institutions to decide.

If the ruling does ban trans people from using single-sex facilities, the assumption might be that trans women have to use the men’s bathroom and trans men have to use the women’s bathroom, and presumably nonbinary and intersex people the bathroom which matches their birth certificate. (Though again, the ruling ignores nonbinary and intersex people completely.)

However, the ruling also states that trans people can now be excluded because of our gender identity and appearance. Specifically, the ruling provides an example where a transgender man, despite being defined as a “biological female”, can be excluded from a group for female victims of sexual assault on the basis that “the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided”. Presumably, the opposite applies to trans women.

Effectively, the ruling states we can be excluded from both men’s and women’s spaces simultaneously.

When asked which bathroom a trans woman was supposed to use in light of the ruling, government minister Karin Smyth was unable to answer. Baroness Falkner has said that trans people should use gender neutral facilities or a “third space”. She has also said that trans people themselves should be pushing for organisations to provide “third spaces”, despite this arguably being the duty of the equality body, since its role is to ensure everyone is treated equally. At least in theory, anyway. Regardless, this amounts to the segregation of trans people.

How the notion of a “third space” is supposed to work for sport is unclear, since no ‘third space’ is practically possible, given the tiny number of trans athletes. Again, maybe it will lead to the breaking down of gender segregation in sports, but probably not. More likely, it will just mean that trans people are excluded entirely.

Similarly, the idea that trans people should be placed on a separate hospital ward from both men and women would presumably mean we get a private room. This seems unlikely and impractical, given the lack of NHS capacity and the upset this would arguably cause among non-trans patients who have to share a ward with others.

Many trans people have said they will continue to use single-sex spaces according to their gender. For those not “out” to colleagues, suddenly using a different toilet than usual at work will force us to “out” ourselves (and that might be the point), which is arguably a violation of our human right to privacy. For those who are gender-conforming and/or “pass” as cis, this might not be a problem unless employers or others who know about our transgender identity make it a problem. The motivation to be “stealth” has just become even stronger.

For those of us who don’t “pass” or are gender-nonconforming, this is going to be a problem, and ignoring the ruling (if it does indeed mean we are automatically excluded) is going to be dangerous and open us up to abuse and harassment. Whether it would be illegal or not is unclear — no law in the UK says you have to use a toilet according to sex or gender, only social convention.

I doubt that will stop police and overzealous security guards getting involved. One solution to this would be for business owners to make clear that their facilities are trans inclusive and therefore, according to the act, “mixed sex”, which is something Baroness Falkner has suggested is possible. However, this would also then allow use to cisgender men, since it’s hard to see how the ruling would justify excluding cisgender men but including trans women, both of whom are defined as ‘biological males’.

The alternative — maintaining single sex spaces in the spirit of the ruling — will involve businesses and institutions having to become “gender police”.

It’s long been the case that women, both cis and trans, are called out and accused of being trans for not looking “woman” enough — some have even been killed for it. But since nobody can tell someone’s “biological sex” or their cis or trans identity just by looking at them, the (potential) requirement to exclude trans people will almost certainly lead to an intensification of gender policing against those who don’t adhere to strict patriarchal standards of gender conformity.

In this respect, the ruling is incredibly regressive for both trans rights and women’s rights.

And it seems that exclusion based on gender-nonconformity is now permitted under the ruling. Think again about the example where a trans man, defined as a “biological female”, can nonetheless be legally excluded from a women’s space for having a “masculine appearance or attributes”: that definition is pretty vague and seems to entirely depend on what makes a given cis woman feel uncomfortable when using a single sex space. If a ‘biological female’ can be excluded for looking masculine, the ruling seems to also allow the exclusion of butch or masculine cisgender women from women’s spaces, too — so long as they’re making other women uncomfortable due to their “masculinity”.

The ruling doesn’t stop at defining what a trans man or woman is, but also takes the liberty of defining sexuality. According to the ruling, a lesbian is a “biological female” who is attracted to “biological females”. The judges state that allowing the possibility that transgender women can be lesbians removes “autonomy and dignity” from (cisgender) lesbians. But the ruling removes the autonomy of many lesbians who are attracted to trans women to define themselves as such, and the same goes for gay men attracted to trans men. It seems the Supreme Court only really cares about the “autonomy and dignity” of some lesbians and gay men, to the extent of erasing the identity of all others.

The Supreme Court, with the help of “gender critical” so-called feminists, has managed to turn equality law into an instrument for defining people’s sexuality for them.

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Overall, the ruling, however it’s interpreted, is going to make life harder for trans people. The Supreme Court have been explicit in stating that trans people are still protected from discrimination under the Equality Act, but leaves this fairly vague and up for interpretation. They also state that the ruling doesn’t disadvantage trans people, which is blatantly untrue given it now more easily allows for our legal discrimination and exclusion.

The effect of this ruling will likely be an increase in harassment and abuse from transphobes, who can now justifiably harass us in bathrooms and other single sex spaces. Transphobic businesses also now apparently have legal carte blanche to exclude us from any space they say is single sex, relegating us to a “third space”. Trans people can now effectively be excluded from all sports, too. It’s legal segregation, plain and simple.

The claim that this is a win for women is frankly ludicrous, since the ruling reinforces harmful stereotypes about women’s inferiority and encourages intensified gender policing of anyone who fails to conform to white, middle-class, patriarchal gender norms.

The impact on queer, butch, and gender-nonconforming women is going to be severe, and they might not even be protected from exclusion thanks to the absurdity of this ruling.

Make no mistake, the ‘gender critical’ groups that have pushed for this judgement don’t care about other women or their rights, beyond using their victimhood to attack trans people. The “gender critical” movement is part of a broader, global far-right, anti-gender, and anti-feminist movement. This ruling is just one of many, from Hungary to the US, that have attacked the rights of LGBTQ+ people under the guise of protecting women and girls, while it actually harms them.

As Judith Butler has said, the exclusion of a tiny minority of people, like trans people (and we are certainly not the only minority being sacrificed as part of this far-right wave), is a ‘fascist logic’. The “gender critical” movement is therefore a fascist movement, evidenced further by its alliance with groups like the Heritage Foundation and the anti-abortion Christian right, and its praise of Trump. It’s hard not to see this ruling as a step closer to British fascism.

But not all is lost. This ruling, and all the dark money, time, and effort that transphobes have put into pushing for trans exclusion and to reinforce the boundaries of a regressive, binary notion of sex and gender, shows just how weak those boundaries have become. If “sex” was so obvious, so “natural”, so “common sense”, they wouldn’t have to use the highest court in the land to shore up their crumbling reality, and try to erase everyone who contradicts it.

In a recent article, Sara Ahmed, referencing both Stuart Hall and Paolo Freire, talks about how common sense becomes part of the background, a “solid bedrock, the wisdom of the race”. Sex is, for a (cis)sexist, homophobic, and patriarchal society, part of that ‘solid bedrock’, and most people have an “unthinking relation” to it. Ahmed references Rishi Sunak’s transphobic statement, “a man is a man and a woman is a woman — that’s just common sense”. The common-sense, non-definition of “sex” used by the Supreme Court is another example of this ‘unthinking relation’.

Ahmed goes on to discuss how, when we contradict common sense, when we contradict that ‘solid bedrock’, we are the ones accused of losing touch with reality. We “assume the character of a problem”. But we aren’t the ones losing touch with reality, we’re just forcing people to consider the “deeper implications” of that reality and its contradictions. And so we’re punished for it, we’re told we’re ‘not really’ what we know we are.

But it’s their reality that isn’t really what they think it is. The more they fight to maintain this definition of “sex” and the more they desperately try to shore up the boundaries of their crumbling reality with legal, political, epistemological, and physical violence, the more obvious its frailty and its incoherence becomes. I can take some solace in that.

It might not seem like it, as we are excluded, erased, and punished for simply being ourselves — and I’m certainly not downplaying all the pain and anxiety and fear we’re all feeling right now — but in a weird way, the fact that they have to try so hard to deny our existence, to deny our reality and maintain their own, is a sign that we’re winning.

We exist, we know who we are, and we’re not going anywhere, no matter how the Supreme Court cares to define us.

Special thanks to Jess O’Thomson and BlueSky user Ashleeee for their legal analysis, and to Talia Bhatt for helping me gain a deeper understanding of some of the wider issues involved.

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