The UK’s supreme court decision that trans women are not defined as women under equality law is likely to have widespread ramifications for the regulation of how public space is shared in Britain’s hospitals, schools, armed services, sports, changing rooms and toilets.
The biggest sigh of relief at the ruling, however, may come not from campaigners, but from British prime minister Keir Starmer’s Labour government. It feared the UK’s supreme court would kick the issue back to Westminster for politicians to decide, plunging MPs into a potentially nasty debate at a time when the government’s limited bandwidth is stretched by geopolitical matters.
Instead, the five-judge court on Wednesday was unanimous as it ruled clearly that the terms woman, man and sex are defined solely by a person’s biological sex in the UK’s Equality Act 2010, which underpins most British rules in this area. The ruling applies regardless of whether a trans person has a gender recognition certificate (GRC) giving legal recognition to the gender with which they identify.
The court has, perhaps, saved politicians from themselves. This contentious matter has been settled by the highest court in the UK.
While trans activists in Britain are understandably disappointed, the other big loser in this affair is another political party. Labour’s rival, the Scottish National Party (SNP), now tastes bitter defeat after fighting the case all the way to the supreme court to argue that trans women could legally be classified as women.
What now of the dwindling legacy of the SNP’s former first minister of Scotland, Nicola Sturgeon, who cited trans rights as her biggest achievement after failing to make headway with her party’s independence dream?
The genesis of the case lay in the decision of the SNP government in Scotland to count trans women as women in the calculation of gender quotas for boards of directors. A gender-critical campaign group, For Women Scotland, which is financially backed by Harry Potter author JK Rowling, challenged this decision, but lost twice against the Scottish government in the courts.
The matter ultimately went to the UK’s supreme court, which previously also scuttled Sturgeon’s attempts to hold an independence referendum without the permission of the UK government in Westminster. On the trans issue, the court deviated decisively from the lower courts that had ruled before. For Women Scotland won its case.
In its ruling delivered just before 10am, the court, which faces the UK’s political debating chambers from across the other side of Westminster’s Parliament Square, said the application of the Equality Act as it pertained to sex would become “incoherent” if biological sex was not considered legally immutable.
Starmer has in the past been criticised for his inability or unwillingness to define a woman in public. Now he doesn’t have to. On Wednesday, his government swiftly welcomed the “clarity and confidence” of the supreme court’s judgment.
Eight months after it banned puberty blockers for children, Starmer’s Labour government now has political and legal cover to further shift its position in the trans rights debate.
Trans rights activists, meanwhile, must begin a whole new lobbying campaign for fresh legal changes for the legal recognition of trans people. They may find this a hard sell to politicians in Westminster.
Labour may yet face an uncomfortable period of internal debate on the balancing of trans and women’s rights. The party has vocal wings on both sides of the issue.
