Trans inclusion after the Supreme Court decision: FAQs

Both commentators and some public bodies are issuing guidance saying that the effect of this ruling is simple: 

• Sex means biological sex, meaning sex recorded on your original birth certificate. 
• Trans women are not women. 
• Women-only spaces must now exclude trans women. 

This is incorrect and misleading. What can presently be said with confidence is that:

• Sex now means sex recorded at birth for the purposes of the Equality Act. 
• Trans men (or women) are not men (or women) for the purposes of the Equality Act.
• Trans women with a Gender Recognition Certificate (GRC) are women for almost all legal purposes, other than the Equality Act.
• Trans men or women are protected from discrimination on the grounds of their gender reassignment under the Equality Act (whether or not they have a GRC). 
• Trans men’s right to define themselves as men (or trans women’s right to define themselves as women) is also protected by human rights law.
• It is still possible for women-only spaces to include trans women and – importantly – there are still certain general obligations on employers and service providers under the Equality Act to provide spaces and services for trans people. 
• The Equality Act contains some general provisions on single-sex public spaces (see further below). However, the specific law governing toilets, changing rooms and strip searches is not contained in the Equality Act itself, but in different sets of regulations, like the Workplace (Health, Safety and Welfare) Regulations 1992 and the School Premises (England) Regulations. The definition of “biological sex” does not automatically read into this law. There will be argument in courts and tribunals over the knock-on impact of the FWS judgment for all of this related law, but it is wrong to assume that the outcome will be the same as in FWS. What can be concluded is that, regrettably, the decision has created a great deal of uncertainty.

• In FWS, the Supreme Court decided a narrow point. The question before it was whether or not trans people with a GRC change their sex for the purposes of the Equality Act. The Supreme Court has decided that they do not. The judgment did not directly affect the rights of most trans people who do not have a GRC.
• The full implications of the Supreme Court decision will take some time to unravel. However, it must be recognised that the Supreme Court explicitly stated that it “would not be disadvantageous to or remove protection from trans people with or without a GRC”. It provided a list of some ways in which it believed trans people would still be protected under the Equality Act. That list was not comprehensive, and there are also other ways in which trans people will be protected under the Equality Act and the Human Rights Act, as well as many other domestic legal regimes.

No. 

Your GRC still means that you are your certificated sex for almost all legal purposes – such as for the purposes of getting married or your pension.

The Supreme Court’s ruling has settled only the point that a GRC does not change your sex for the purposes of the Equality Act 2010.

There are still legal benefits (see above and further below).

However, it is also true that, given the current hostile direction of travel in the UK towards transness, we do not think it is without risk to be on a State list of trans people. We are aware, for example, that the NHS is facilitating or encouraging so-called safeguarding referrals of families of younger trans people following international healthcare protocols. 

Ultimately this is a personal choice. But if the State is already aware of your status as trans you may reasonably conclude there is little additional risk posed by applying for a GRC.

• In some specific circumstances particular legal regimes will govern what service providers are allowed to offer.
• However, generally, the judgment does not prevent a service provider from offering an inclusive service or space to people who live as women (or men) or on another similar inclusive basis. Doing so is unlikely to require that the service is opened up to all people whose sex was recorded male (or female) at birth as some have suggested. Nor does it prevent a trans-inclusive service provider from describing their service as being for women (or men) as the case may be (although it should be made clear to service users what they mean by this).
• More specifically, we believe a service provider is entitled to offer a service that is inclusive of trans women (or men), rather than one segregated according to sex recorded at birth. This can be done on a number of legal bases. One is as an act of positive action under s.158 of the Equality Act. Positive action is permitted where this is a proportionate means of overcoming or minimising a disadvantage suffered by (in this case) trans people or meeting the specific needs of trans people or addressing low participation by trans people in a particular activity. It may, for example, be regarded as a disadvantage suffered by, or a specific need of, trans people that they are likely to feel uncomfortable in using the facilities provided for those of their sex recorded at birth and be discouraged from using them.
• A trans inclusive policy may be argued to disadvantage, and face challenges from, people whose sex was recorded male or female at birth but those challenges may be defended on grounds which include that the policy is justified as a proportionate means of achieving a legitimate aim. When adopting or reviewing their access policies, whether trans-inclusive or not, all service providers should consider the interests of all service users and document their thinking as to what objectives they are seeking to pursue and why they think that their policy is justified, balancing the interests of different groups of service users.

The ruling in FWS is only about the definition of women and men for the purposes of the Equality Act. It does not deal with which toilets employers and businesses and public authorities (such as cinemas, shopping centres, hospitals and so on) that offer toilets to the public should make available let alone which toilets you should use. 

You are the sex you are born with for the purposes of the Equality Act, your certificated sex if you have a GRC for many other legal purposes, and your lived sex for the purposes of human rights law. Regrettably, this does not tell you which door to open when standing in front of a row of toilet doors.

However, we would offer the following advice on your legal rights:

• You can always use a unisex toilet.
• It might be lawful for employers and service providers to segregate toilets according to sex recorded at birth (see further below) and there are some legal risks if you ignore such a policy if lawful. For example, depending on the facts, you could be accused of harassing other users of the toilet, or disobeying a reasonable instruction by your employer. However, it is also true that it might be unlawful to segregate toilets according to sex recorded at birth and it is certainly humiliating to use the wrong toilets. How you balance those factors will depend on your own risk appetite, your personal circumstances and the attitudes of your employer and colleagues. 
• If the business or public space has not indicated that it intends to apply a definition of sex recorded at birth to their toilet provision we think that you should be able to use the toilet that aligns to your gender identity. We consider that simply showing a gender symbol is not sufficient to show that a sex recorded at birth definition is being applied. That said, there is a risk that an employer or service provider will consider merely showing a gender symbol is clear enough, and you may risk a dispute with them if you take this approach.
• If there are no appropriate toilets for you, and you feel confident to do so, you can ask for an appropriate toilet to be made available to you, and explain that it is discrimination on the basis of your rights as a person with the protected characteristic of gender reassignment not to provide you with any appropriate toilets. We understand that it will not be practical or fair for trans people to have this debate in person, let alone at the moment that you need the toilet.

Usually, it will depend on whether their decision is justified based on all the facts and circumstances. 

If a service provider chooses to offer a single-sex service based on sex recorded at birth, they may exclude trans people of that sex recorded at birth (i.e. exclude trans men from a women-only space) only if this is justified as a “proportionate means of achieving a legitimate aim”. 

A single-sex space based on sex recorded at birth may be discriminatory against trans people of the opposite sex recorded at birth (i.e. if trans women are excluded from a women-only space) because they may then lack any appropriate service provision. The service provider will also need to be able to justify their policy as a proportionate means of achieving a legitimate aim. It will usually be challenging for service providers to do this if they have not offered reasonable alternatives for trans people.

In some situations, whether a business or organisation can legally exclude a trans person might depend on whether they have a GRC. As we explained above, lots of the specific law governing the provision of single-sex spaces is not in the Equality Act and some will still be governed by the Gender Recognition Act and not adopt a sex recorded at birth approach. 

For example, access to single-sex cubicle toilets (i.e. toilets that are in cubicles, rather than a separate lockable room) may depend upon whether you have a GRC because the meaning of “sex” in the Workplace (Health and Safety) Regulations 1992 may be governed by the GRA. These Regulations require that, if workplaces are providing cubicle toilets, they must offer “sufficient” single-sex cubicles (although employers could provide unisex cubicles as well. These Regulations probably mean “single-sex” according to certificated sex, applying the default position in section 9(1) of the GRA. 

None at this point, but Good Law Project already has plans to bring this question before the courts.