A Response to Losing Focus by MurrayBlackburnMackenzie

A Response to Losing Focus by MurrayBlackburnMackenzie

OPINION: TransLucent — April 2026

MurrayBlackburnMackenzie (MBM) has published a report, Losing Focus: Women’s Charities and the UK Supreme Court Ruling, which purports to offer legal and policy analysis of the position of women’s charities following the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers.

TransLucent welcomes rigorous legal debate on these issues. However, we are concerned that Losing Focus presents a highly selective and, at times, potentially misleading account of the law, and that its recommendations, if followed uncritically, could cause serious harm to transgender women who rely on charitable services, while simultaneously exposing charities to legal risks MBM fails to identify. We are also concerned that the report appears to be designed to cause charities unnecessary fear, and note that the word “may” often appears, suggesting the authors are, rightly, unsure of the legal ground. 

This briefing sets out our detailed response. 

We are committed to accuracy and acknowledge where the Supreme Court’s ruling has real legal consequences. But we equally insist that the full legal framework — the Equality Act 2010, the Gender Recognition Act 2004, and the Human Rights Act 1998 — must be read together, and that service providers are entitled to design services that protect the dignity, privacy and safety of all those they serve, and must be able to justify any exclusions or intrusive practices as proportionate and lawful.

1. What the Supreme Court Actually Decided

MBM’s report is built upon the Supreme Court’s judgment of April 2025, which held that the term “sex” in the Equality Act 2010 refers to biological sex. TransLucent does not dispute this finding. It clarifies the statutory language in the EA 2010, and charities with female-only objects should take it seriously when reviewing their governance.

However, MBM treats this judgment as though it were a broad operational directive requiring every women’s charity to immediately exclude all transgender women from their services. In our opinion, this likely overstates what the Court determined. A charity with female-only objects that chooses, after taking proper legal advice, to adopt trans-inclusive policies within a carefully designed service framework, is (subject to the advice being sound) not automatically acting unlawfully.

The Supreme Court was unequivocal that its task was confined to the statutory interpretation of specific provisions of the EA 2010. It was not issuing guidance to the charitable sector, nor was it resolving wider debates about gender identity in society. It expressly did not purport to define “woman” for all purposes across all fields of law and life.

Critically, the Court’s ruling on the meaning of “sex” in the EA 2010 determines the scope of the charities exception in s.193 — that is, it clarifies who a charity may lawfully restrict services to when invoking that exception.

It does not compel charities to invoke s.193 at all.

A charity with female-only objects that, after taking proper legal advice, chooses to adopt trans-inclusive policies within a carefully designed service framework is not automatically acting unlawfully. The legal position is more nuanced than MBM suggests, and charities must take their own advice based on their individual objects, services, and circumstances.

2. The Gender Recognition Act 2004 Remains Central

MBM’s report treats the Gender Recognition Act 2004 as though it has been effectively superseded. This is wrong. The GRA remains a cornerstone of the UK’s legal framework for transgender people, and its importance should not be minimised.

Under s.9(1) GRA, when a full Gender Recognition Certificate (GRC) is issued, the person’s gender becomes “for all purposes” the acquired gender. The Supreme Court held that s.9(3) — the carve-out — displaces s.9(1) in the specific context of the EA 2010’s definition of “sex.” But this displacement is limited to that statutory context. The GRA continues to govern a wide range of legal relationships: marriage and civil partnership, pensions and social security entitlements, official documentation and birth certificates, and a person’s legal status in numerous other domains.

Importantly, s.22 GRA makes it a criminal offence for a person who has acquired information in an official capacity to disclose that another person has applied for, or been issued with, a GRC, or that they have a gender history. This provision is directly relevant to charitable service provision. MBM’s approach — which implies that charities must determine and act upon the biological sex of service users — creates a real risk that organisations will engage in practices that unlawfully expose the gender history of trans service users, in breach of s.22 GRA and potentially in breach of Article 8 of the European Convention on Human Rights. MBM does not engage with this risk at all, yet it is a risk to which it would expose every trustee it purports to be advising.

3. The Human Rights Act 1998 and the Right to Privacy

The Human Rights Act 1998 requires all public authorities — and organisations exercising public functions, which includes many charities delivering publicly commissioned services — to act compatibly with Convention rights. Article 8 ECHR protects the right to respect for private and family life, a right the European Court of Human Rights has long held includes gender identity and the right not to have sensitive personal information disclosed without justification.

Any policy or practice by a charity that requires service users to disclose their biological sex, produce documentation, or otherwise establish that they do not hold a GRC engages Article 8. To justify such an interference, the charity must demonstrate that it is lawful, pursues a legitimate aim, and is necessary and proportionate. This is not a theoretical concern: transgender women accessing domestic abuse shelters, rape crisis services, or mental health support are among the most vulnerable people in the country. Requiring them to prove their biological sex as a condition of receiving emergency support is unlikely to satisfy the proportionality test in many cases and may constitute degrading treatment in the most serious circumstances.

MBM’s report does not address the Article 8 framework. Its legal opinion, authored by Karon Monaghan KC, is focused exclusively on charity law and the EA 2010. It does not constitute a comprehensive legal analysis of the full obligations charities bear, and trustees should be aware of its limitations before treating it as definitive advice.

4. The Equality Act Protects Gender Reassignment as Well as Sex

The Equality Act 2010 provides a balanced framework of protections. It protects “sex” as a protected characteristic, and it separately protects “gender reassignment” under s.7. These are distinct characteristics with distinct protections, and the Act requires that both be respected.

Discrimination against a person “because of gender reassignment” is unlawful under s.13 EA 2010. While s.193 permits a charity to restrict benefits to one sex where this is a proportionate means of achieving a legitimate aim, that exception does not provide blanket immunity from liability under the gender reassignment provisions. A blanket policy of excluding all trans women, applied without individual assessment and without reference to the nature of the service and the needs of the user, may in some circumstances amount to direct discrimination because of gender reassignment, or to harassment under s.26. MBM does not explore this tension with the thoroughness it deserves.

Furthermore, the Public Sector Equality Duty under s.149 EA 2010 requires public authorities — and those exercising public functions — to have due regard to the need to advance equality of opportunity and to foster good relations between persons who share a protected characteristic and those who do not. Gender reassignment is a protected characteristic for the purposes of the PSED. Charities receiving public funding and delivering public services must therefore consider the impact of exclusionary policies on transgender service users. MBM’s report does not address the PSED at all.

5. Inclusive Practice is Not Mission Drift

MBM characterises the decision by many charities to serve transgender women as “mission drift” — a departure from their charitable objects. TransLucent strongly contests this characterisation. For many organisations, particularly in the violence against women and girls (VAWGVAWG Violence Against Women and Girls   Further info https://www.gov.uk/government/publications/tackling-violence-against-women-and-girls-strategy) sector, the inclusion of transgender women reflects a carefully considered, evidence-based judgement about who is at risk from gendered violence and who needs support.

Transgender women experience domestic abuse, sexual violence, and exploitation at very high rates, indeed considerably higher than cisgender women. They face gendered discrimination, misogyny, and targeted violence. Many are excluded from other services and face compounded vulnerabilities. Specialist charities serving survivors of gender-based violence have not included transgender women arbitrarily or under pressure: they have done so because their mission — to support those harmed by gendered violence — encompasses transgender women as a matter of both principle and evidence.

MBM’s suggestion that this constitutes a diversion of resources from female beneficiaries to male ones depends entirely on treating transgender women as men. The Supreme Court’s ruling on the EA 2010 does not require or endorse that characterisation in the broader operational context of service delivery. Describing transgender women as men throughout a policy document is not a neutral legal act: it is a political choice amounting to transphobia, which this briefing rejects.

6. Regulatory Uncertainty Requires Caution, Not Alarm

MBM warns trustees that they may face personal liability and regulatory action if they continue to serve transgender women. TransLucent acknowledges that charity trustees have real legal duties, and that charitable objects set meaningful legal boundaries. Trustees must take their obligations seriously.

However, the regulatory position following the Supreme Court’s judgment remains genuinely unsettled. Neither the Charity Commission nor the EHRC has issued final statutory guidance. The Charity Commission has itself stated that it may be reasonable for trustees to await that guidance before making policy changes. In this context, MBM’s report risks creating unnecessary alarm among trustees and driving precipitate exclusionary decisions — with real and immediate consequences for vulnerable transgender people — in advance of the legal and regulatory picture becoming clear.

Trustees who have adopted inclusive policies in good faith, taken legal advice, and acted in a way they reasonably believed was consistent with their objects are not obviously at risk of personal liability. Regulatory action requires evidence of serious governance failure. MBM presents inclusion as self-evidently unlawful: it is not.

7. A Call for Balanced, Rights-Respecting Policy

TransLucent calls on regulators, funders, policymakers, and trustees to engage with the full legal framework and to resist the pressure to treat a single Supreme Court ruling — however important — as requiring the wholesale exclusion of transgender women from charitable services.

The law in this area is complex. The EA 2010, the GRA 2004, and the HRA 1998 each impose obligations that must be balanced with care. Transgender women are not a threat to women’s services: they are service users, survivors, and members of the communities those services exist to protect.

Any guidance, policy, or legal analysis that fails to take their rights, dignity, and safety seriously is incomplete — and, we would argue, incompatible with the values the charitable sector exists to uphold.

We urge all organisations to seek comprehensive, independent legal advice before making changes to their policies, to consult with their service users, and to design approaches that are both legally sound and genuinely inclusive.

This briefing is produced by TransLucent for information purposes. It does not constitute legal advice. Organisations should seek independent legal counsel in relation to their specific circumstances.

A Response to Losing Focus by MurrayBlackburnMackenzie