Carys Mosely evaluates the EHRC’s interim advice on the Supreme Court’s judgment that ‘sex’ is to be defined as biological sex, not gender self-identification.
Last month the Supreme Court of the UK ruled that ‘sex’ in the Equality Act 2010 and therefore in law generally is biological. The entire 88-page judgment can be read here.
The Equality and Human Rights Commission intervened in the appeal to the Supreme Court by For Women Scotland against the Scottish Government in November 2024.
In its intervention it said that a Gender Recognition Certificate gives a person a ‘certified sex’, saying that this caused serious problems for upholding women’s rights in using public services.
What the Supreme Court said
The Supreme Court judges ruled unanimously that sex in the Equality Act 2010 is biological only. The court reasoned this partly because pregnancy and maternity discrimination, covered by the act, can only be done against biological women, i.e. those born female.
The court also reasoned that sex in the Sex Discrimination Act 1975 could only refer to biological sex, because there were no transsexual rights back then.
The judges repeatedly said that Parliament could only have had biological sex in mind when passing the Equality Act 2010. (What is interesting is that they never referred to the Equality Act 2006, which used the term ‘gender’ but not ‘sex’.
That law was superseded by the Equality Act 2010.) The Supreme Court judges thanked the interveners from Sex Matters and the EHRC for their reasoning on these matters.
EHRC intervention admitted problems with sex definition in law
The EHRC’s intervention can be accessed from its website. It distinguished between two definitions of sex: the first one based on biology and determined at birth, the second based on obtaining a Gender Recognition Certificate under the terms of the Gender Recognition Act 2004 (section 2, EHRC intervention).
The EHRC told the court that it understood the law to mean that section 9 of the GRA changed a person’s legal sex. It went through the relevant case law, including two judgments handed down by the Court of Justice of the European Union applying EU discrimination law and a judgment handed down by the European Court of Human Rights (section 12, EHRC intervention). These judgments led Tony Blair’s government to pass the GRA.
The EHRC told the court that the second definition of sex was the correct one in law, pointing out the profound difficulties this created for applying the Equality Act 2010 as regards women’s rights. What this means is that the EHRC was in fact unhappy with the law as it stood in 2022, when it had published its previous guidance.
It is relevant that the UK is no longer under the jurisdiction of the Court of Justice of the EU (CJEU) due to Brexit. In this explainer I showed how the EU Parliament set the ball rolling years ago for redefining sex as psychological as well as biological, working with the Council of Europe which controls the European Court of Human Rights.
The Equality and Human Rights Commission’s Interim Update
The EHRC’s Interim Update published on 25 April sets out the judgment’s basic implications for organisations including workplaces, services open to the public (hospitals, shops, restaurants, leisure facilities, refuges and counselling services), sporting bodies, schools, and associations of more than 25 people that have membership rules.
According to this, workplaces must provide “sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.”
However:
“It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.”
Workplaces and hospitals
Nevertheless, the EHRC goes on to specify that for services open to the public and workplaces:
“trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex”.
Single-sex facilities are therefore protected in law. This will be very welcome news for the Darlington Nurses, currently clients of the Christian Legal Centre, who are fighting to keep single-sex changing rooms single-sex.
At the same time some exceptions are allowed, to deny men who identify as women the right to use men’s facilities, and women who identify as men the right to use women’s facilities. The EHRC does not explain this in detail.
The EHRC recommends mixed-sex toilets, changing rooms and washing facilities be made available for self-identified trans people alongside single-sex facilities.
Schools told not to allow toilet use by opposite sex
Importantly the judgment’s scope extends to schools, because the Equality Act 2010 does so. The EHRC explains it thus:
“Schools in England and Wales must provide separate single-sex toilets for boys and girls over the age of 8. It is also compulsory for them to provide single-sex changing facilities for boys and girls over the age of 11. The law in Scotland requires schools, irrespective of pupils’ age, to provide separate toilet facilities for boys and for girls. Toilet cubicles are required to be partitioned and have lockable doors.
Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required.”
Activists influenced the passage of the Equality Act 2010 through Parliament to ensure discrimination on grounds of gender reassignment in schools was covered. The judgment appears to restrict the scope of this move, by disincentivising cross-sex identification by pupils. This is a welcome move.
The Christian Legal Centre has helped numerous clients challenge schools over their transgender policies in recent years. These include teachers, parents and their children, and governors – people such as Joshua Sutcliffe, the Rowes, John Parker, ‘Hannah’ and Kristie Higgs. This judgment goes a long way to vindicating these clients and others.
Could the judgment affect the RSE curriculum?
It is worth asking whether the change of culture required by the judgment will lead to redrafting of the Relationships and Sexuality Education curriculum for schools.
Currently RSE normalises transgenderism. If toilet use is to be regulated properly now, the normalisation of transgenderism in schools could be questioned. As schools settle down to a more reality-based policy, we should see more questioning of the RSE curriculum on this.
Interestingly Professor Emma Renold, who designed the RSE curriculum for Wales, has signed an open letter from feminist academics condemning the Supreme Court judgment.
Membership of associations affected
In a move that could assist churches, the judgment permits associations of 25 or more people that have membership rules to be single-sex associations. The reason for this was to protect not only single-sex groups but specifically lesbian groups. An association here can be a private club or other association. The judges leaned on section 107 of the Equality Act 2010. The EHRC summarises the matter thus:
“Membership of an association of 25 or more people can be limited to men only or women only and can be limited to people who each have two protected characteristics. It can be, for example, for gay men only or lesbian women only. A women-only or lesbian-only association should not admit trans women (biological men), and a men-only or gay men-only association should not admit trans men (biological women).”
Back in 2000 Bill (later Dian) Parry, a Welsh independent minister who had previously been sacked by his own deacons for choosing to undergo a ‘sex-change’, won the right to join the Welsh-language equivalent of the Women’s Institute after ‘talks’ with the Equal Opportunities Commission. Initially Merched y Wawr had rejected Parry’s application to join, but later changed its policy after taking legal advice.
Then in 2002 Parry sued a Christian church in Maesteg when the pastor refused access to the women’s toilets.
Under the Supreme Court judgment, churches and independent organisations should not have to put up with any more activism of this kind.
Step towards change of organisational culture
The Supreme Court judgment is to be welcomed as it prioritises the truth about biological sex in public service provision. Transgender ideology can no longer be allowed to dominate the public sector as it has done in recent years. This should help the change of culture advocated by the Sullivan Review.
The EHRC emphasised that mixed-sex facilities should be provided for self-identified trans people, and the judgment echoed this. What this does is highlight the reality, which is that trans identification is linked to degrees of rejection of one’s own sex and cannot be deemed to be truly grounded in somehow becoming the other sex.
This is a vital step away from the faulty jurisprudence of the European institutions, itself encouraged by transsexual rights activists.
The challenge of enforcing the judgment
The judgment provides the legal basis for a change of culture. However, this is where the real conflict is likely to happen. At section 78 of the judgment, the Supreme Court says that a GRC is a confidential certificate according to Section 22 of the GRA, which gives transsexuals privacy rights.
It is significant that in a footnote to its own intervention the EHRC said that it had discouraged local service providers from asking people for a GRC, without explaining or justifying this stance (fn. 13). It hinted that local providers have the right to choose to ask someone if they are a biological woman or not, and to refuse services accordingly without being guilty of sex discrimination.
Such a policy may work for women’s refuges, but won’t work for public facilities that aren’t always universally staffed, such as public toilets or changing rooms. Indeed, the judges say at section 202-203 that Parliament could not have intended for trans people with GRCs to be treated differently than those without GRCs under the Equality Act 2010.
The judges appear to be saying that the Equality Act 2010 permitted gender self-identification, though they never spell things out in this way.
Christian Concern has called for sex to be defined as biological in statute law
Back in 2020 Christian Concern submitted written evidence to the Women and Equalities Committee in Parliament, arguing that sex should be defined in law, meaning statute law. We were among the first organisations to make the case for this. This judgment is welcome but of course it is not for judges to draft statute law.
Last month’s judgment goes some way to bring clarity and justice to the law. Two years ago I warned that the government wasn’t going to define sex in law, that the government sent people back to EHRC guidance when asked about this, and that regrettably the EHRC wasn’t truly capable of helping it do that. Since then, the EHRC’s position has improved. Its intervention in For Women Scotland’s case has clarified that it was in fact unhappy with the understanding of sex in law at the time.
However, both the Supreme Court judges and the EHRC have been hampered by the framework provided by the Gender Recognition Act. Both have effectively admitted that gender self-identification has been permitted to operate since the GRA was passed, because Section 22 of that act prohibits public service providers from asking people if they have a Gender Recognition Certificate.
This of course is neither the fault of the Supreme Court nor of the EHRC. What it does highlight is the lack of authority that the government has in all of this. My original criticism back in 2023 stands, namely that the reason for this is that everything has been driven by concern about rights rather than responsibilities. Use of preferred pronouns, social transition and cross-dressing will continue.
Where are we headed with all this?
The government now needs to ensure that people use single-sex services honestly, otherwise the law is a dead letter, and public trust in and respect for the law will decline. A male judge who identifies as female has plans to appeal the judgment at the European Court of Human Rights in Strasbourg. Given that this was that court that redefined sex, allowing this appeal would reopen the debate on the UK’s handling of the European Convention on Human Rights.
Then there is the evidence on the ground of rejection of the judgment. Polling shows that only 42% of Labour voters support it. The resident doctors (formerly known as junior doctors) branch of the British Medical Association branded the judgment ‘scientifically illiterate’. This stance was condemned as destroying trust in medicine.
The Universities and Colleges Union, the academics’ trade union, showed clear bias towards trans ideology – hardly an encouraging picture for academic freedom and standards. A Church Times columnist repeated the idiotic nonsense that sex is not binary, but a continuum. Leaders of over 1,000 cultural institutions signed an open letter refusing to regulate which toilets people use in their buildings.
The EHRC is to consult on its new guidance on the matter this month, albeit allowing only two weeks to respond. We will provide guidance for supporters on responding to this. For now, the future on the use of single-sex services remains somewhat uncertain, depending on where we look, notwithstanding the significant victory in the Supreme Court.
