Supreme Court Ruling - Key Information for Educators

Introduction 

Last week the UK Supreme Court shared their ruling on the case For Women Scotland Ltd v The Scottish Minister, which interprets the legal definition of the word ‘woman’, as used in the context of The Equality Act 2010. 

Since the court handed down on Wednesday 16th April, the ruling has been spoken about extensively in the regulated media, unregulated social media, and in Parliament. We have read and listened to much of the coverage from diverse sources, and in our opinion the ruling is not being explained accurately or appropriately by many. Those pleased with the ruling are often exaggerating, misinterpreting or misrepresenting the details of the case, whereas those hurt by the ruling are at times using catastrophising language, which in our opinion is unhelpful and may act to exacerbate the fear that many trans people are currently experiencing. 

Our intention in this piece is to present the details as accurately and clearly as we can. In order to do so, we have tried to avoid presenting our own opinions in much of the following piece. However, we think it is important to be transparent before we begin. We know trans people, we love them, we live our lives alongside them, and we are deeply concerned about the way this ruling is already impacting their lives. We believe that it is the duty of our government to enact laws which provide workable and inclusive protection from discrimination, and ensure dignity and respect for all people – including transgender people. With that clear, let’s begin.  

Background 

In 2018 the Scottish Government presented a new law, which aimed to get more women on public boards. The Scottish Government included trans women who had obtained a Gender Recognition Certificate (GRC) within this aim, which they felt was in-line with The Equality Act 2010, and the Gender Recognition Act 2004. However, the group For Women Scotland disagreed – they felt The Equality Act 2010’s protected characteristic of ‘sex’, and specifically its use of the word ‘woman’, was not intended when written to include trans women.  

For Women Scotland therefore brought a judicial review to the UK Supreme Court, requesting they review the lawfulness of the Scottish Government’s position in relation to The Equality Act 2010. Therefore, it was the job of the UK Supreme Court to provide a statutory interpretation of the meaning of ‘man’, ‘woman’, and ‘sex’ as used in The Equality Act 2010, and specifically whether that definition includes trans women who have a GRC. 

The Ruling 

The UK Supreme Court unanimously agreed that Parliament did not intend for the definition of ‘woman’ as used in The Equality Act 2010 to include trans women. Rather, the Court ruled that ‘sex’ in The Equality Act 2010 refers to ‘biological sex’ (a term which neither the law or the court defines clearly), and thus does not include trans individuals – whether they have obtained a GRC or not. The decision was made because to include transgender people who have a GRC within The Equality Act 2010 definition would make the law unworkable. 

There are some details of the ruling which we think are important. 

Firstly, the ruling is specifically addressing the definitions as used in The Equality Act 2010. The judge, when handing down the ruling, explained that the origins of the language used in The Equality Act 2010 is the Sex Discrimination Act 1975, which the judge stated, ‘adopted a biological interpretation of the terms men and women’. Note the wording here – the Acts have adopted an interpretation. This ruling does not define what a woman is – it interprets what it means in the specific context of a 15-year-old Act, which pulls on an interpretation used in 1975.

Secondly, this ruling does not justify the discrimination of trans people. The court clarified several times during their hand down that trans people are still protected from discrimination under The Equality Act 2010, which includes ‘Gender Reassignment’ as a protected characteristic. The judge explained that this protection extends to cover trans people whether they have a GRC, or not. Furthermore, there is some legal precedent that non-binary people may also be protected under this characteristic – although this is legal precedent and not case law. The judge also clarified that transgender women can still be protected under the characteristic of ‘sex’ through associated or perceived protections of women. We think it is also important to note that the judge at all times used respectful and correctly gendered language when talking about trans people – stating clearly that this ruling should not be seen as a triumph for any one group over another. 

Finally, we think it is contextually important to understand that the court system in the UK interprets the laws which are enacted by Parliament. This ruling is thus an interpretation of law, and our current government can clarify this interpretation, or change the law to make it workable and inclusive, should they wish to.  

What does this mean for society, and for schools? 

The legal implication of this ruling is that single-sex spaces may now exclude trans men and women. Crucially, they do not have to, but they may now legally choose to if they can demonstrate that this choice is a ‘proportionate means of achieving a legitimate aim’. In society, this may impact: public toilets and changing spaces; sports groups and professional sports; support groups, spaces, or refuges; prisons; and other single-sex segregated spaces. 

In schools, it has never been possible for young people to obtain a GRC, but this ruling may still impact: single-sex schools; school toilets and changing spaces; physical education and sport; and residential accommodation. In each of these areas, a school may now legally choose to exclude trans young people (or trans staff) from single-sex spaces if they can demonstrate that this choice is a proportionate means to achieving a legitimate aim. Again, they do not have to choose to exclude trans people – but they may now legally choose to in relation to single-sex spaces. For example, it would now be legal for a school single sex sports groups to exclude trans young people – or for schools to prevent trans young people from accessing the toilet aligned with their gender. Again, these decisions are not legally necessary – but they are now legally possible. 

Although this is currently the only legal implication of this ruling, we are already seeing the misrepresentation of this ruling creating social implications beyond the legal bounds of the case. Transgender discrimination is increasing, and cis-gender people are already being discriminated against because of false assumptions about their gender. Although trans-exclusionary single-sex provision is now legal in certain circumstances, it is difficult to enforce or police without making assumptions which could be false. We predict that this ruling will also impact staff confidence in discussing trans identities and the protected characteristic of ‘Gender Reassignment’, which could impact the inclusive quality of Relationships, Sex, and Health Education (RSHE) and Personal, Social, Health Economics (PSHE). 

There is a lot of misinformation, which is leading to worsening, and at times unlawful, discriminatory language and behaviour. Government Ministers have stated the ruling requires transgender people to use toilets related to their sex assigned at birth – this is not stated in the ruling. The Prime Minister has claimed the ruling offers clarity by defining women as biological women – this is misleading as the court judgement only pertains to an interpretation of what was meant by Parliament in The Equality Act 2010, and as clarified above it is parliament who enact and change law. Our current government could clarify or change law to make it workable and inclusive, should they wish to – the courts do not dictate definitions to Parliament.  

Suggested Actions

We hope that reading this piece has helped you to feel more informed about the Supreme Court ruling. Below are some actions you may wish to undertake as a result of what you have read:  

1. Please challenge mischaracterisations of this ruling and clarify that transgender people are still legally protected from discrimination, and that any decision to exclude them from single-sex spaces, whilst legal, is a choice. Schools and other organisations can still choose a trans inclusive approach. 

2. Revisit policies – this ruling may require more accurate and thought-out language in policies which reference men and women, boys and girls, or The Equality Act 2010 protected characteristics of Sex and Gender Reassignment.

3. If you are concerned about this ruling, and the impact it will have on transgender people (as well as cis-gender people who are wrongfully assumed to be transgender), then please take the time to write to your local MP and express your concern. You may wish to call for a trans-inclusive review and update of The Equality Act 2010. Remember, Parliament makes the laws, and the courts can only interpret them – our current government can change The Equality Act to include more clear and inclusive definitions which provide workable protections and dignity to all people – including transgender people. You may also choose to write directly to our Prime Minister (see Trans Actual guidance here).

4. Read and share our Diverse Educators Resources to support you and your school community. Here is our Transgender Rights’ Toolkit and here is our Growing Trans and Non-Binary Awareness Training. 

Further Resources 

• A clear and accurate legal explanation from Kalina Hagen – Click Here
• Trans Actual Response – Click Here