By Elio Wilder (they/them)
Content warning: discussions of transphobia and misogyny, mentions of harassment
There’s a lot of misinformation going around, so here’s the facts
The Gender Recognition Act 2004 (GRA) allows a trans person to be legally considered their ‘acquired gender’ if they have been granted a Gender Recognition Certificate (GRC).
‘9(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).’
But, the GRA also specifies that, ‘Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.’
The Equality Act 2010 (EA) is included in ‘any other enactment’ and therefore has the ability to override the definition in Section 9(1) of the GRA, and instead use its own definition within the EA.
The central question: What is the definition of ‘sex’ under the EA?
The court ruled that references to ‘sex’, ‘gender’, and related terms in the EA exclusively refer to a person’s gender assigned at birth ‘as a matter of ordinary language’ (para.265 (x)) and that the terms must refer to a person’s gender assigned at birth in order for the legislation to be ‘meaningful and workable’ (para.185 (b)).
It is clear that the writers of the EA did not appropriately consider trans and gender diverse people when creating the legislation due to the abundance of language that implies that womanhood is directly tethered to child-bearing capacity, which was a major factor in the court ruling (para. 185).
Prior to this ruling, trans people were separated into two groups under the legislation. All trans people were protected under the ‘gender reassignment’ section of the legislation. A sub-group of trans people who possessed GRCs had additional protections.
The judgement points out the absurdity of treating trans people differently on the basis of whether or not they have a ‘paper certificate’ (a GRC) (para. 202).
They acknowledge, ‘it is in practice impossible for organisations to distinguish between people with the protected characteristic of gender reassignment who do and do not have a GRC’ (para. 203) and that it is ‘hard to see how any reasonable objection to providing the service could depend on whether the trans person (person A) has or does not have a GRC’ (para. 218).
As a result of this ruling, there are no longer additional protections for those in possession of a GRC under the EA. All trans people now have the same protections under the EA. The value of a GRC is limited to those specified in the GRA. Trans people with a GRC are still considered legally to be their ‘acquired gender’ under the GRA because the definition in 9(1) still stands within the context of the GRA.
For example, the previous legal interpretation of the following paragraph from the EA was taken to mean trans people without a GRC could be excluded but trans people with a GRC could not be excluded from a single-sex space aligned with their gender identity.
‘(1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.’
Under the new ruling, this section now permits the exclusion of all trans people (regardless of GRC) from single-sex spaces that do not align with their gender assigned at birth.
While the EA has protections from discrimination on the basis of ‘sex reassignment’, paragraph 28 specifies exemptions. This means trans people can additionally be excluded from single-sex spaces that do align with their gender assigned at birth in some cases (para. 221 and 236).
‘Sex discrimination’ under the EA provides protection only in relation to a person’s gender assigned at birth.
The EA also protects people from discrimination based on the perception of the victim having a protected characteristic regardless of whether they are legally considered to have that protected characteristic.
This means that trans women who are perceived as women are protected from misogynistic discrimination and harassment on the basis of that perception (para. 140 and 249-257). They have the right to be treated equally to men, as do all women.
There have been conflicting reports regarding how this ruling will work in practice.
Providing a single-sex service is allowed in certain conditions under the exceptions to the ‘sex discrimination’ section of the EA. Kishwer Falkner, chair of the Equality and Human Rights Commission, has stated that failure to exclude trans women (now legally defined as ‘biological men’) from a designated single-sex service would mean the service would ‘no longer meet the conditions for being provided on a single-sex basis’ and is therefore unlawful.
Conversely, Former Supreme Court judge Jonathan Sumption stated that providers ‘are allowed to exclude trans women from these facilities. But you are not obliged to do it.’
Many single-sex service providers, such as domestic abuse support services, were already flirting with the conditions of being classed as a single-sex service provider by supporting trans women without a GRC prior to this ruling and so are unphased by the judgement. Provider Refuge has stated they will continue to support trans women.
While anti-trans groups have hailed this ruling as some kind of win for (cisgender) women’s rights, this ruling will result in no tangible benefit to cisgender women living in the UK.
In reality, the ruling has only increased the prevalence of violent vitriol towards trans people, which will lead to increased harassment of trans women, tall women, black women, butch women, women with masculine features, women with PCOS, and gender non-conforming women. This aligns with the concerning trend of increased harassment towards cisgender women spurred by anti-trans sentiment we have already seen.
Prior to reaching the Supreme Court, gendered terms within the EA were deemed to have several meanings depending on context, sometimes referring to gender assigned at birth and at other times be referring to legal gender as defined in the GRA.
A previous judge, Lady Haldane, rejected the trans-exclusionary argument ‘that there was a conflict between the GRA 2004 and the EA 2010, which she stated was “drafted in full awareness of the 2004 Act, and its ambit” (para 50), and (ii) that the EA 2010 impliedly repealed or disapplied section 9(1) of the GRA 2004 (para 52). As a result, “sex” in the EA 2010 was not confined to biological sex but includes the acquired sex of those who possess a GRC obtained under the GRA 2004.’ (para.27) The Supreme Court disagreed with this stance, resulting in the current outcome.
The ruling can be appealed.
Read the full ruling here:
https://supremecourt.uk/uploads/uksc_2024_0042_judgment_aea6c48cee.pdf