Supreme Court Ruling on Trans Rights in Equality Act

[IvanV]

Out in the real world the argument is over. Overwhelming agreement that males must be barred from women's prisons and elite women's sports.

And maybe that argument now actually is truly over, as the Supreme Court acted consistently with this asserted "overwhelming agreement", in a ruling on the interpretation of the 2010 Equality Act.
Lord Hodge, deputy president of the court, said:

As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity and to protection from risks specifically affecting women, can only be interpreted as referring to biological sex.

He went on to make the conclusion that services and places could

...function properly only if sex is interpreted as biological sex.
...
Those provisions include separate spaces and single-sex services, including changing rooms, hostels, medical services, communal accommodation, [and] arise in the operation of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty and the armed forces.

But he reminded us that the 2010 Act includes specific protections for trans-gender people.

The ruling in part dealt with an issue that only some trans people have gender recognition certificates, and the claimants sought different treatment for those with and those without them. Hodge observed that in many cases it is not practically possible to make that distinction.

Trans-gender people, ie those with a gender identity different from their biological sex, who wanted to be treated exactly as if they had the same the biological sex of their gender identity, or at least with only a very short list of exceptions to that - for example in relation to maternity - will be disappointed. Not that any such list of exceptions exists.

Some parties on the other side of this case have pointed to an ECHR ruling that the 2010 Act was supposed to deal with. That seems to be the }]Christine Goodwin vs UK case. Maybe I've got the wrong case. This is a broader summary of ECHR case law on trans issues. Christine Goodwin is, or was, a post-operative transsexual. From my reading of a summary of it what the case means, the court appeared quite clear that what mattered in Goodwin's case was the fact of the surgery, albeit apparently the judgment did not make clear what extent of surgery was relevant. Whereas I see no mention of surgery - gender recognition certificates are available without surgery - at least not in this news article, and Hodge has referred to sex at birth, which appears to be blind to the fact of surgery.

So maybe the arguments aren't over, and the government will have to return to parliament to sort out remaining issues that the judgment leaves, and and so return compliance with the ECHR judgments. Though in fact many of the key issues in the Goodwin case, such as pension and marriage issues, have been entirely resolved by removing the sex discrimination in those areas of law. And maybe UK law has distinctive treatment for the post-operative that it isn't an issue, I just don't know.

[Gfamily]

Biologists would also query how straightforward it is to determine 'biological sex'; clearly it's not as binary as some would try to persuade us.

[Lew Dolby]

This above. For me, it leaves the big question unanswered - How are you going to police it ? Should we have someone outside every publically accessible women's toilet who has to inspect genetalia before entry is allowed/denied ??

[IvanV]

Biologists would also query how straightforward it is to determine 'biological sex'; clearly it's not as binary as some would try to persuade us.

And the fact of intersex people, who are in fact not that rare, should remind us that "biological sex" isn't as simple as that. And there is indeed a tendency to skate over the intersex issue. But there are reasons why they get away with that.

One is that most trans people are not intersex. And the other is that most intersex people do not have gender dysphoria, they are not confused about who they are. People who are obviously intersex are rare. They are generally comfortable with their gender assigned at birth, which aligns to what they look like on cursory examination, and how they present to wider society. So it doesn't tend to lead to points of legal or social conflict. It is more of an issue in elite sport, as the case of athlete Caster Semenya exemplifies.

But there are some intersex cases which are more difficult, though they are rare. And some intersex people are in effect also trans, ie unhappy with the gender assigned at birth. Sometimes some surgery is done on those who are more obviously intersex, and they can be unhappy with the decisions that were made for them when they were young.

[Tessa K]

Women are biologically determined (ie the sex assigned at birth) and those with Gender Recognition Certificates (GRCs) are not women according to the Supreme Court.

For Women Scotland, funded by J K Rowling, have campaigned for this.

As ever, trans men are pretty much ignored.

This is very bad news for a lot of people. Where does this leave non binary or gender neutral people?

[bob sterman]

Biologists would also query how straightforward it is to determine 'biological sex'; clearly it's not as binary as some would try to persuade us.

Indeed. And even if we consider biological sex to be binary - there are several binary distinctions. Which one do they mean? Genotypic sex? Gonadal sex? Phenotypic sex? They don't always match.

E.g. someone who is XY with testes but has complete androgen insensitivity syndrome (CAIS) will have a completely female external appearance including a vagina. They will likely have been raised as a girl. They will be phenotypically a biological female - but genetically a biological male.

And even genotypic sex isn't that binary - it's not just XX vs XY. It's presence of the Y that makes the difference - so the key distinction is having no Y (XX, XO, XXX etc) vs having one (XY, XYY). And sometimes the key (sex-determining) part of the Y can get broken off and attached to another chromosome so you can be XX with an SRY gene and have testes and a typical male phenotype (see XX male syndrome).

[IvanV]

For me, it leaves the big question unanswered - How are you going to police it ? Should we have someone outside every publically accessible women's toilet who has to inspect genetalia before entry is allowed/denied ??

We have never had any mechanism to deny people entry to the public toilets they choose to enter, so why do we need one now? Rather it has generally been a matter of social convention and social pressure. The police only get involved if there is a breach of the peace.

I think the bigger practical issue this raises is the requirement for individual gender neutral toilets/changing rooms, etc. There will be people who will either be unhappy with who they might meet and/or the worrying the other users will be unhappy to meet them, whichever one they go into. Multi-user toilets in two categories doesn't really satisfy society's requirements, once we acknowledge that we cannot easily separate people into two categories. And I think that is part of what this judgment tells us. And let us not forget that that trans people are generally the sufferers/excluded ones. Maybe the disabled loo gets more widely purposed.

But such is the pressure on public expenditure that the biggest problem is keeping public toilets, etc, open, let alone redesigning them.

[Lew Dolby]

Yeah, I was thinking more of the people who parrot the (mainly) USAn "men shouldn't be allowed in women's spaces" stuff.

Dog-alone knows how those peeps would cope with in France where toilets are often shared spaces with women having to walk past the backs of men at urinals to get to the cubicles.

[JQH]

As I understand it, this refers specifically to the Scottish requirement that the membership of appointed public bodies be 50% women. So it does not mean that trans women are not women in any circumstances. Though I'm sure it will be interpreted that way.

[Woodchopper]

Women are biologically determined (ie the sex assigned at birth) and those with Gender Recognition Certificates (GRCs) are not women according to the Supreme Court.

For Women Scotland, funded by J K Rowling, have campaigned for this.

As ever, trans men are pretty much ignored.

This is very bad news for a lot of people. Where does this leave non binary or gender neutral people?

I think its a bit different. I've just looked at the summary but it seems that the ruling only covers the meaning of 'man' and 'woman' in the sex discrimination aspects of the Equality Act. They've ruled that as written by parliament sex discrimination has always been based upon biology, eg references to pregnancy etc in the Act.

Here's a link: https://www.supremecourt.uk/cases/uksc-2024-0042

[Woodchopper]

This above. For me, it leaves the big question unanswered - How are you going to police it ? Should we have someone outside every publically accessible women's toilet who has to inspect genetalia before entry is allowed/denied ??

I assume that for the sex discrimination aspects of the Equality Act (what the Supreme Court ruling covers), in practice it would come down to the original designation on a birth certificate prior to any amendments under the auspices of the Gender Recognition Act.

As Ivan mentioned, the ruling doesn't cover someone gatekeeping access to a specific toilet. But there is a long history of toilets and changing facilities being part of discrimination cases (eg 'we can't allow women because we don't have the facilities'). So they're probably going to be affected at some point.

[Tristan]

This is very bad news for a lot of people. Where does this leave non binary or gender neutral people?

Presumably still protected under the provisions they always had under the gender reassignment protections. Those don't go away. This is from the press notes that went with the ruling:

bafkreieb4piyl2zwqzwhti5ucy6dca4shwxxegvhlgewvoajpnw2pwvxfu.jpg (63.16 KiB) Viewed 2066 times

In some ways they're doubly protected based on the 2nd to last sentence. If a female but non-binary identifying person is discriminated against because they're percieved to be a woman (eg, paid less than a man for the same job) they're still protected under sex discrimination.

In fact, it seems even a transwoman can still claim sex discrimination if they were perceived to be a woman (despite not actually being one under the EA definition).

[IvanV]

We've been having a discussion of this here. I'll ask to merge the threads.

The posts from that thread have been moved over to this one.

[Tristan]

I assume that for the sex discrimination aspects of the Equality Act (what the Supreme Court ruling covers), in practice it would come down to the original designation on a birth certificate prior to any amendments under the auspices of the Gender Recognition Act.

Not necessarily. This is from the press notes alongside the ruling. It seems that a transwoman could still bring a sex discrimination case if they were discriminated against because they were perceived to be a woman (despite not being one per the EA definition). And if they were unlawfully discriminated against because they were perceived to be a transwoman then they'd be covered by the Gender Reassignment elements of the EA, which aren't going away.

bafkreieb4piyl2zwqzwhti5ucy6dca4shwxxegvhlgewvoajpnw2pwvxfu.jpg (63.16 KiB) Viewed 2154 times

[Woodchopper]

I assume that for the sex discrimination aspects of the Equality Act (what the Supreme Court ruling covers), in practice it would come down to the original designation on a birth certificate prior to any amendments under the auspices of the Gender Recognition Act.

Not necessarily. This is from the press notes alongside the ruling. It seems that a transwoman could still bring a sex discrimination case if they were discriminated against because they were perceived to be a woman (despite not being one per the EA definition). And if they were unlawfully discriminated against because they were perceived to be a transwoman then they'd be covered by the Gender Reassignment elements of the EA, which aren't going away.

bafkreieb4piyl2zwqzwhti5ucy6dca4shwxxegvhlgewvoajpnw2pwvxfu.jpg

Thanks, good point.

[Woodchopper]

This is very bad news for a lot of people. Where does this leave non binary or gender neutral people?

Presumably still protected under the provisions they always had under the gender reassignment protections. Those don't go away. This is from the press notes that went with the ruling:

bafkreieb4piyl2zwqzwhti5ucy6dca4shwxxegvhlgewvoajpnw2pwvxfu.jpg

In some ways they're doubly protected based on the 2nd to last sentence. If a female but non-binary identifying person is discriminated against because they're percieved to be a woman (eg, paid less than a man for the same job) they're still protected under sex discrimination.

In fact, it seems even a transwoman can still claim sex discrimination if they were perceived to be a woman (despite not actually being one under the EA definition).

Yes, the Equality Act protections for for the category of Gender reassignment remain. But there will still be wide ranging consequences for trans people. To take your example, if a company were to be accused of paying men and women differently for equal work then presumably a trans woman's income would be counted among the pay for men rather then of women.

This would most likely be very distressing for the trans woman, not least because she'd be counted as a man in any ongoing monitoring designed to prevent discrimination based on pay. I assume that similar would apply in other HR measures with a similar objective, concerning for example promotions or recruitment etc. The message would be that what matters is what was written on the trans woman's original birth certificate, and all attempts to transition are irrelevant.

[discovolante]

This is very bad news for a lot of people. Where does this leave non binary or gender neutral people?

Presumably still protected under the provisions they always had under the gender reassignment protections. Those don't go away. This is from the press notes that went with the ruling:

bafkreieb4piyl2zwqzwhti5ucy6dca4shwxxegvhlgewvoajpnw2pwvxfu.jpg

In some ways they're doubly protected based on the 2nd to last sentence. If a female but non-binary identifying person is discriminated against because they're percieved to be a woman (eg, paid less than a man for the same job) they're still protected under sex discrimination.

In fact, it seems even a transwoman can still claim sex discrimination if they were perceived to be a woman (despite not actually being one under the EA definition).

Yes, the Equality Act protections for for the category of Gender reassignment remain. But there will still be wide ranging consequences for trans people. To take your example, if a company were to be accused of paying men and women differently for equal work then presumably a trans woman's income would be counted among the pay for men rather then of women.

This would most likely be very distressing for the trans woman, not least because she'd be counted as a man in any ongoing monitoring designed to prevent discrimination based on pay. I assume that similar would apply in other HR measures with a similar objective, concerning for example promotions or recruitment etc. The message would be that what matters is what was written on the trans woman's original birth certificate, and all attempts to transition are irrelevant.

I'm trying to work out if the scenario you describe could potentially be a form of indirect discrimination but haven't really managed to play out the full scenario in my head just now.

[El Pollo Diablo]

We've been having a discussion of this here. I'll ask to merge the threads.

The posts from that thread have been moved over to this one.

Thanks Woodchopper. I've separated out the chat on the Supreme Court ruling into a new thread, given its importance.

[Woodchopper]

We've been having a discussion of this here. I'll ask to merge the threads.

The posts from that thread have been moved over to this one.

Thanks Woodchopper. I've separated out the chat on the Supreme Court ruling into a new thread, given its importance.

Thanks El Pollo.

[IvanV]

This is very bad news for a lot of people. Where does this leave non binary or gender neutral people?

Presumably still protected under the provisions they always had under the gender reassignment protections. Those don't go away. This is from the press notes that went with the ruling:

bafkreieb4piyl2zwqzwhti5ucy6dca4shwxxegvhlgewvoajpnw2pwvxfu.jpg

In some ways they're doubly protected based on the 2nd to last sentence. If a female but non-binary identifying person is discriminated against because they're percieved to be a woman (eg, paid less than a man for the same job) they're still protected under sex discrimination.

In fact, it seems even a transwoman can still claim sex discrimination if they were perceived to be a woman (despite not actually being one under the EA definition).

Yes, the Equality Act protections for for the category of Gender reassignment remain. But there will still be wide ranging consequences for trans people....

Indeed, wide-ranging consequences. For although the case came about because of this very narrow Scottish issue on board representation, and it might argued because it only considered the meaning of words in one particular Act, that interpretation in that Act has wide application. As indicated in this BBC new article. All the gender-segregated facilities stuff turns on this, and much else. That BBC article brings out, as I suggested, that this tends to indicate that two rooms segregated by sex are probably now not enough.

I also remain considerably confused about what this means for those who have had gender reassignment surgery. What are they "biologically"? Which of the various potential biological criteria should we use? As I noted in an earlier post, part of the reason that we got the Equalities Act 2010 was response to a ECHR case, which was specifically about someone who had had gender reassignment surgery.

[discovolante]

I guess what the judgment highlights is that the law is a mess and some primary legislation is needed to sort it out.

For me, it leaves the big question unanswered - How are you going to police it ? Should we have someone outside every publically accessible women's toilet who has to inspect genetalia before entry is allowed/denied ??

We have never had any mechanism to deny people entry to the public toilets they choose to enter, so why do we need one now? Rather it has generally been a matter of social convention and social pressure. The police only get involved if there is a breach of the peace.

I think the bigger practical issue this raises is the requirement for individual gender neutral toilets/changing rooms, etc. There will be people who will either be unhappy with who they might meet and/or the worrying the other users will be unhappy to meet them, whichever one they go into. Multi-user toilets in two categories doesn't really satisfy society's requirements, once we acknowledge that we cannot easily separate people into two categories. And I think that is part of what this judgment tells us. And let us not forget that that trans people are generally the sufferers/excluded ones. Maybe the disabled loo gets more widely purposed.

But such is the pressure on public expenditure that the biggest problem is keeping public toilets, etc, open, let alone redesigning them.

Last year I was at an (indoor) festival that is known for being very trans (and other characteristics) inclusive. At one point some trans women were ejected from the female toilets after a (female) security guard went in there to do a check. I wasn't there but I would have been surprised if any of the other users of the toilets had been worried about them being in there because at that particular festival it is pretty much just accepted that trans women will use the women's toilets. They were quite roughly treated by security according to several accounts. Granted that's only one anecdote but social pressure and convention doesn't really work whichever side of the 'debate' you're on when the people 'in charge' will act however they see fit regardless.

[El Pollo Diablo]

I feel quite sad about this ruling and worried about my family member who is trans. I can't imagine what it feels like to be vulnerable and to be given the impression that society doesn't want to protect you as much any more, and that the people who hate you are correct.

Lewis Goodall has written a good opinion piece on the ruling.

But it is undeniable that the ruling does effectively create a two-tier system: even if a trans person has gone through the process of obtaining a Gender Recognition Certificate- it still does not fully count in one of the UK’s most important anti-discrimination laws. We have embedded in law that these people on some level, cannot escape their biological sex. Yes, as Lord Hodge said, there are legal protections for trans people in the Equality Act: you can’t discriminate against a trans person because they’re trans, but being trans does not legally give you the right to be treated as a woman born biologically female. The state is treating you as a sub-category of person.

That will be traumatic to many, and the media would do well to remember that, which they won’t. There were no easy answers here: it is true that women and lesbian's groups’ right to association would have been undermined had the judgment gone the other way. But the complexity makes a political process more important. If our national discourse been more measured on this subject in recent years, I might have been more hopeful that the judgment might have acted as a starting point for some consensus and outreach. Instead, I fear this will be the beginning of a maximalist agenda to further undermine and often insult trans people, and their status in society. With Trump’s victory, the ideological winds are finely attuned to this purpose. There are many well-meaning people who welcomed today’s judgment who do not wish trans people ill. There are many more who are at best indifferent to them and more still who have little more than thinly veiled bigotry. Someone once said that “Prejudice, not being founded on reason, cannot be removed by argument.” We might be about to find that it can be made legitimate by a Supreme Court judgment.

The fault lies with Parliament, primarily, and it is on the shoulders of Parliament to resolve the issues that lie ahead for trans people. But if anyone out there thinks that a Labour government led by Keir Starmer is going to act to offer any protection to trans people, they're absolutely deluded. That ship sailed a long time ago. The only surprise this morning is that Wes f.cking Streeting hasn't come out acting like a prick on the topic like he usually does.

[dyqik]

This is very bad news for a lot of people. Where does this leave non binary or gender neutral people?

Presumably still protected under the provisions they always had under the gender reassignment protections. Those don't go away. This is from the press notes that went with the ruling:

bafkreieb4piyl2zwqzwhti5ucy6dca4shwxxegvhlgewvoajpnw2pwvxfu.jpg

In some ways they're doubly protected based on the 2nd to last sentence. If a female but non-binary identifying person is discriminated against because they're percieved to be a woman (eg, paid less than a man for the same job) they're still protected under sex discrimination.

In fact, it seems even a transwoman can still claim sex discrimination if they were perceived to be a woman (despite not actually being one under the EA definition).

Yes, the Equality Act protections for for the category of Gender reassignment remain. But there will still be wide ranging consequences for trans people. To take your example, if a company were to be accused of paying men and women differently for equal work then presumably a trans woman's income would be counted among the pay for men rather then of women.

This would most likely be very distressing for the trans woman, not least because she'd be counted as a man in any ongoing monitoring designed to prevent discrimination based on pay. I assume that similar would apply in other HR measures with a similar objective, concerning for example promotions or recruitment etc. The message would be that what matters is what was written on the trans woman's original birth certificate, and all attempts to transition are irrelevant.

In particular, this would make it harder for women to claim pay discrimination, if there's a transgender women being paid the same as other women, but who is counted as a man for pay discrimination purposes. A sh.tty company that pays people presenting as women less than people presenting as men will be able to point to the lower pay for the transgender woman as proof that the "biological" women are paid the same as a man (in this circumstance, the sh.tty company would know that the transgender woman is transgender, and so the perceived discrimination doesn't apply).

[Tristan]

I’m reading through the ruling and so far it seems fairly clear that they couldn’t have come to any other judgement. If they’d come to the opposite conclusion then it would have meant that a trans man, with a GRC but who hadn’t surgically transitioned, who had a baby and was discriminated against as a result, would not be able to make a claim of discrimination under the EA2010.

Only women are included in the provisions for pregnancy. Now, if the meaning of “woman” is based biological sex, then a trans man who’s given birth would still be covered. But if the meaning of woman is based on certificated or legal sex then trans men are excluded from that provision.

[Tessa K]

If trans people have to use toilets, changing rooms etc of the gender they were assigned at birth then trans men have to use women's toilets etc. So what's to stop cis het men claiming to be trans to get into our spaces? Own goal.