The meaning of “woman” and “female” in the Equality Act has become one of the most contested questions of recent years. Last week the supreme court settled it, in a landmark legal judgment that affirms the rights of women to the same level of legal protection afforded to other groups.
The Equality Act protects people against discrimination on the basis of nine protected characteristics, including their sex, race, sexual orientation and gender reassignment. The question at stake was whether “sex” means someone’s biological sex, or their “certificated sex”; in other words, should those who are male but who have a gender recognition certificate (GRC) be treated as a woman under equalities law?
The answer that the supreme court produced is no: because to do so would be to drive a coach and horses through Equality Act provisions aimed at protecting women, lesbians and gay men. The law is now clear: it is not lawful to allow anyone male, including trans women, to take part in female-only sports affected by average differences in strength and stamina between the sexes.
It is unlawful to operate single-sex services, hospital wards, changing rooms and toilets that are open to trans members of the opposite sex. Workplaces and schools must always provide single-sex facilities; other service providers can choose whether to, but not doing so might be sex discrimination. A hospital or care provider cannot honour a woman’s request to have intimate care provided by a female with a male professional who identifies as female. Lesbians and gay men can now run membership associations without being obliged to admit heterosexual members of the opposite sex who have a GRC. And trans men remain entitled to the same protections against pregnancy and maternity discrimination as other members of their sex, regardless of whether or not they have a GRC. The judgment is also clear that trans people have exactly the same level of protection against discrimination, harassment and victimisation as other groups, which is exactly as it should be. It cannot therefore be represented as the rollback of rights that some have sought to do. Instead, the supreme court has emphasised the balancing nature of the Equality Act, which adjudicates between the rights of different groups.
The reason this was needed is because in practice the balance of rights had been pushed off kilter by campaigners insisting that trans women must be treated as though they are female under equalities law. Right across society, from the NHS, to the police, to prisons, to workplaces: the law has in effect been rewritten by leaders and HR managers in response to activist demands, and in a way that unlawfully discriminates against women.
Politicians from all parties have refused to grapple with this conundrum. This could not contrast more sharply with the bravery and resilience of the three grassroots feminists who set up For Women Scotland and forced this issue in front of the highest court in the land. Their fortitude has paved the way for judges to provide this important reset that reminds organisations that their legal obligations are not just to one group, and they must take their legal duties to women as seriously as they do their duties to trans people.
It was never for the supreme court to set out the policy solutions that accommodate everyone’s rights, but it is fairly evident what they should be. Service providers should provide gender-neutral changing rooms and toilets alongside single sex and accessible facilities to ensure trans people have spaces they can feel comfortable using.
Sporting bodies should adopt a fully-inclusive open category, which anyone can enter, alongside the female-only category necessary to protect fairness and safety in women’s sports. This is the dignified compromise that respects the rights of everyone.
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