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| This is a very tough day for trans people – with a long legal road ahead to right this wrong | This is a very tough day for trans people – with a long legal road ahead to right this wrong |
| (31 minutes later) | |
| The supreme court judgment is contradictory and confused. And there seems no prospect of the Labour government sorting this out | The supreme court judgment is contradictory and confused. And there seems no prospect of the Labour government sorting this out |
| A person has to be tough to be transgender. Given the problems that can be associated with coming out to family, friends and work colleagues, the constant vilification of trans people by certain parts of the media and on social media and the internal emotional turmoil transition entails, it requires mental strength beyond the ordinary. I should know – I have walked that path. | A person has to be tough to be transgender. Given the problems that can be associated with coming out to family, friends and work colleagues, the constant vilification of trans people by certain parts of the media and on social media and the internal emotional turmoil transition entails, it requires mental strength beyond the ordinary. I should know – I have walked that path. |
| Yesterday, transgender people were dealt a blow from a source I would not have predicted when I transitioned 13 years ago – the UK supreme court. In a case concerning representation on the boards of public bodies in Scotland, the supreme court ruled that in the 2010 Equality Act (EA), “sex” should be taken to be “biological sex”, in the sense of the sex recorded on a citizen’s original birth certificate, and does not include “certified sex” where a transgender person has obtained a gender recognition certificate (GRC) by the process set out in the 2004 Gender Recognition Act. This renders a GRC valueless for the purposes of the Equality Act. | Yesterday, transgender people were dealt a blow from a source I would not have predicted when I transitioned 13 years ago – the UK supreme court. In a case concerning representation on the boards of public bodies in Scotland, the supreme court ruled that in the 2010 Equality Act (EA), “sex” should be taken to be “biological sex”, in the sense of the sex recorded on a citizen’s original birth certificate, and does not include “certified sex” where a transgender person has obtained a gender recognition certificate (GRC) by the process set out in the 2004 Gender Recognition Act. This renders a GRC valueless for the purposes of the Equality Act. |
| The 2004 legislation was not granted by a benevolent UK government but enacted after the UK lost the case of Goodwin v UK in 2002, in the European Court of Human Rights, which held that the UK lacked a process for the state to acknowledge and accept a transgender person’s acquired gender. The 2004 GRA included a number of exceptions, including one that deferred to any future legislation. | The 2004 legislation was not granted by a benevolent UK government but enacted after the UK lost the case of Goodwin v UK in 2002, in the European Court of Human Rights, which held that the UK lacked a process for the state to acknowledge and accept a transgender person’s acquired gender. The 2004 GRA included a number of exceptions, including one that deferred to any future legislation. |
| In this case, the supreme court found that, while there is not explicit exemption in the EA, there was an implied exemption given the stresses and strains caused by “sex” meaning different things in different parts of the act, and in particular the possibility that a “trans man” might be pregnant when the pregnancy and maternity provisions referred to protecting “women”. Strangely enough, at the two previous stages of the case at the outer and inner houses of the Scottish court of sessions, the courts had felt able to live with those stresses and strains and ruled that “sex” included “certified sex”. | In this case, the supreme court found that, while there is not explicit exemption in the EA, there was an implied exemption given the stresses and strains caused by “sex” meaning different things in different parts of the act, and in particular the possibility that a “trans man” might be pregnant when the pregnancy and maternity provisions referred to protecting “women”. Strangely enough, at the two previous stages of the case at the outer and inner houses of the Scottish court of sessions, the courts had felt able to live with those stresses and strains and ruled that “sex” included “certified sex”. |
| We now know that the supreme court was indeed wrong in its judgment. Melanie Field, the civil servant who led the team that created the EA, has since come out publicly to say that it was “based on the clear premise that for a person with a gender recognition certificate (GRC), their ‘sex’ for the purposes of the EA is that recorded on their GRC”. Harriet Harman, the minister who introduced the bill, has contradicted this, saying that the ruling “correctly interprets the Equality Act, giving effect to our intention when drafting it”. This may be true of the EA, but it doesn’t seem to take into account the GRA position on certified sex – and as Field has correctly pointed out, some of the exceptions written into the EA permitting the exclusion of trans people (for example, in competitive sport) make no sense under the supreme court’s interpretation. They were clearly based on the assumption of certified sex. It seems that the law of unintended consequences now stalks the halls. | We now know that the supreme court was indeed wrong in its judgment. Melanie Field, the civil servant who led the team that created the EA, has since come out publicly to say that it was “based on the clear premise that for a person with a gender recognition certificate (GRC), their ‘sex’ for the purposes of the EA is that recorded on their GRC”. Harriet Harman, the minister who introduced the bill, has contradicted this, saying that the ruling “correctly interprets the Equality Act, giving effect to our intention when drafting it”. This may be true of the EA, but it doesn’t seem to take into account the GRA position on certified sex – and as Field has correctly pointed out, some of the exceptions written into the EA permitting the exclusion of trans people (for example, in competitive sport) make no sense under the supreme court’s interpretation. They were clearly based on the assumption of certified sex. It seems that the law of unintended consequences now stalks the halls. |
| The fact that no trans person or organisation appeared before the supreme court (an intervention by two trans grandees, one a professor of equalities law and the other a retired judge was refused) seems telling to trans people. Imagine, if you will, a discussion of women’s rights with all women excluded. The trans-positive intervention of Amnesty earns an honourable mention. | |
| The supreme court’s judgment is clearly wrong in another way. Following Goodwin, the UK was obliged to provide an effective route for transgender people to have their affirmed gender recognised. If a significant part of the legal protections afforded to citizens is denied to them, the UK would once again appear to be in breach of its obligations to the European convention of human rights. | The supreme court’s judgment is clearly wrong in another way. Following Goodwin, the UK was obliged to provide an effective route for transgender people to have their affirmed gender recognised. If a significant part of the legal protections afforded to citizens is denied to them, the UK would once again appear to be in breach of its obligations to the European convention of human rights. |
| There seems no prospect, in the present political climate, of the Labour government sorting this out. It seems that transgender people will have to find the right case and walk the long path to the European court of human rights in Strasbourg once again. | There seems no prospect, in the present political climate, of the Labour government sorting this out. It seems that transgender people will have to find the right case and walk the long path to the European court of human rights in Strasbourg once again. |
| In the meantime, what difference will the 88-page judgment actually make for transgender people in the UK? Most do not have a GRC. Estimates vary, but there are about 100,000 trans people and perhaps 6,000 with GRCs. I have already seen comments suggesting that some among the anti-trans lobby think that trans people are likely to be banned from toilets in public buildings, changing rooms and the like by the end of the Easter holidays. Fortunately, while service providers can exclude trans people – and this ruling makes it easier to do so – most do not. We do not have laws requiring that, and the discussions in the hours after the ruling with service providers did not suggest that any I spoke to are going to change their practice or instigate an anti-trans crusade. Nevertheless, we would expect responsible politicians to be calming the debate rather than fuelling the flames. | In the meantime, what difference will the 88-page judgment actually make for transgender people in the UK? Most do not have a GRC. Estimates vary, but there are about 100,000 trans people and perhaps 6,000 with GRCs. I have already seen comments suggesting that some among the anti-trans lobby think that trans people are likely to be banned from toilets in public buildings, changing rooms and the like by the end of the Easter holidays. Fortunately, while service providers can exclude trans people – and this ruling makes it easier to do so – most do not. We do not have laws requiring that, and the discussions in the hours after the ruling with service providers did not suggest that any I spoke to are going to change their practice or instigate an anti-trans crusade. Nevertheless, we would expect responsible politicians to be calming the debate rather than fuelling the flames. |
| The supreme court was keen to emphasise the continuing protection for trans people – most, if not all of whom, will have the protected characteristic of gender reassignment. It is highly likely that if a policy of “use your birth sex facility” were imposed, it would be indirectly discriminatory against those with the protected characteristic of gender reassignment – and given the unacceptability of having trans women using the men’s facilities and trans men the ladies’, such a policy could not be justified as a proportionate means of achieving a legitimate aim. More concerning, perhaps, are the implications for other legislation in which the meaning of “sex”, “woman” and “man” are important. | The supreme court was keen to emphasise the continuing protection for trans people – most, if not all of whom, will have the protected characteristic of gender reassignment. It is highly likely that if a policy of “use your birth sex facility” were imposed, it would be indirectly discriminatory against those with the protected characteristic of gender reassignment – and given the unacceptability of having trans women using the men’s facilities and trans men the ladies’, such a policy could not be justified as a proportionate means of achieving a legitimate aim. More concerning, perhaps, are the implications for other legislation in which the meaning of “sex”, “woman” and “man” are important. |
| A certainty is that this will remain a fertile area for lawyers for some time to come – and will therefore provide some further tough and uncertain days for trans people across the UK. | A certainty is that this will remain a fertile area for lawyers for some time to come – and will therefore provide some further tough and uncertain days for trans people across the UK. |
| Robin Moira White is a discrimination barrister at Old Square Chambers, London, and joint author of A Practical Guide to Transgender Law | Robin Moira White is a discrimination barrister at Old Square Chambers, London, and joint author of A Practical Guide to Transgender Law |
| Robin Moira White is a discrimination barrister at Old Square Chambers, London, and joint author of A Practical Guide to Transgender Law | Robin Moira White is a discrimination barrister at Old Square Chambers, London, and joint author of A Practical Guide to Transgender Law |
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| Do you have an opinion on the issues raised in this article? If you would like to submit a response of up to 300 words by email to be considered for publication in our letters section, please click here. | Do you have an opinion on the issues raised in this article? If you would like to submit a response of up to 300 words by email to be considered for publication in our letters section, please click here. |