A Supremely Poor Job

A Supremely Poor Job – UK Supreme Court judgment

Introduction

It is now over a month since the UK Supreme Court handed down its surprising judgment in For Women Scotland v The Scottish Ministers [2025] UKSC 16.

I have not rushed into print about this judgment, recognising from the first that I was likely to write very critically about it, and wanting to read the views of other legal commentators. The writings of Crash Wrigley, Oscar Davies, Michael Falon and Naomi Cunningham have been very helpful in informing and confirming my views.

The task of the Supreme Court was to divine the will of the UK Parliament in the interaction between the Gender Recognition Act 2004 (‘GRA’) and the Equality Act 2010(‘EA’) as to the meaning of ‘sex’ and so the meaning of ‘man’ and ‘woman’ and ‘boy’ and ‘girl’ under the EA.

At first blush, one might have thought that was not too difficult a task, given that in summing up the debate on the GRA in the House of Lords in 2004, Lord Filkin, the relevant government minister, said:

‘On the important issue of discrimination, Clause 9 makes it clear that a transsexual person would have protection under the Sex Discrimination Act as a person of the acquired sex or gender. Once recognition has been granted, they will be able to claim the rights appropriate to that gender.’

A shame, then, that this passage does not feature in the judgment or in the Supreme Court’s thinking. (The SDA 1975 was the relevant precursor to the EA.)

In fact, the judgment has a number of surprising features, which have caused some commentators to question the Supreme Court’s motives in forming the judgment it did. I say no more about that beyond remarking that the legal mistakes are certainly surprising for a panel including the President and Deputy President of the Court and a former President of the Employment Appeal Tribunal.

The significant failures may be listed as:

• A failure to consider a ‘Pepper v Hart’ [1992] UKHL 3 Hansard analysis
• A failure to consider Human Rights considerations
• Failing to hear from appropriate stakeholders
• Taking minority Stakeholders as representatives of the wider community.
• Illogical exploration of the Equality Act
• A failure to appreciate the effect of their judgment.

The effect of these failures is to have produced a judgment which strikes down the rights and protections that trans people have enjoyed since 1999, with no evidence of harm to the general population.

Did the Supreme Court realise that this is what they were doing? I’m not sure what is worse; they did realise and did it nevertheless, or they just didn’t realise the implications of what they were doing and how it would be used?

Biological Sex v Certified Sex

‘Biological Sex’ appears nowhere in the Equality Act. Its first mention in the judgment is in guidance from the Equality and Human Rights Commission (‘EHRC’), which refers to:

‘… biological sex as recorded on their birth certificate…’

The Court appear to adopt this definition and contrast it with ‘Certified Sex’ as modified when a person achieves a Gender Recognition Certificate (‘GRC’) by the process established under the GRA.

There is no discussion of whether the definition provided by the EHRC is either truly ‘biological sex’ or useful or appropriate. An obvious point is that few individuals carry their birth certificate with them in the UK. But more strikingly, the process for recording ‘sex’ at birth is an examination of external genitalia by the midwife or attending physician. Examination of exterior genitalia does nothing to identify other aspects of sex, such as chromosomal sex, and a system of checks based on external genitalia is unlikely to find favour in society. Worse, I, as a fully transitioned trans woman, had gender confirmation surgery with Thailand’s foremost specialist surgeon and my external genitalia are consistent with my affirmed gender.

This aspect has already been called out by a number of medical institutions as ‘scientifically illiterate’.

The Curious Incident of the Dog in the Night-time

‘Inspector Gregory: Is there any other point to which you would wish to draw my attention?
Sherlock Holmes: To the curious incident of the dog in the night-time.
Inspector Gregory: The dog did nothing in the night-time
Sherlock Holmes: That was the curious incident’

From ‘Silver Blaze’ by Sir Arthur Conan Doyle.

Dog 1

The first of the two non-barking dogs in this sorry tale has already been alluded to – the complete absence of reference to Hansard.

The Supreme Court were apparently referred to the notes to the GRA and their effect on the position of a trans woman under the Sex Discrimination Act 1975. Note 27 says, in terms, referring to a trans woman with a GRC:

‘…she would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975.’

This is exactly on all fours with Lord Filkin’s statement quoted above.

The UKSC airily dismiss this clear statement in the notes by saying at paragraph 81:

‘There is nothing in the notes to suggest that the department had undertaken the kind of detailed analysis of the effect of such a change on the operation of provisions of the SDA 1975, as amended by the 1999 Regulations, that we have undertaken in the following sections of the judgment…’

Firstly, we will come to the quality of that analysis by the UKSC a little later. Secondly, notes to an act are hardly the place for long explanations of the work done on them. And thirdly, if I were a parliamentarian reading this, I would be wondering what I had to say to assert parliamentary sovereignty when writing legislation.

As it happens, in addition to Lord Filkin’s statement, there are many, many more relevant matters from Hansard related to both the GRA and the EA that show parliament’s intention. We also have the recollection of those who worked on the Acts and those (like myself) who followed the passage of the Acts through parliament in 2009 and spoke about them regularly at the time.

This makes the exclusion of Professor Stephen Whittle and Judge Vicky McCloud as intervenors at the Supreme Court especially disturbing, given that they were actively involved with the government on those Bills.

No doubt Lord Filkin has been surprised to read (judgment para 264) that:

‘…the words “sex”, “woman” and “man” in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man’

This statement is especially surprising as the idea of defining ‘sex’ as ‘biological sex’ comes from the EHRC who were visted by the UN Independent Expert on Protection of Gender Identity in 2023 and he reported that they had no definition of ‘biological sex’ but appeared to be seeking one which excluded trans people.

Now we turn to the second non-barking dog.

Dog 2

Section 6 of the Human Rights Act 1998 (‘HRA’) requires that legislation be interpreted consistently with the European Convention on Human Rights:

‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right’

‘Public authorities’ under the HRA include courts.

The UKSC knew this, as they remind themselves of the case of Goodwin v UK (2002) 35 EHRR 18, (e.g., UKSC judgment para 63) and the statement from Goodwin (UKSC para 65) that the European Court of Human Rights had concluded:

The Court concluded that the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone which not quite one gender or the other.

It might be said that the effect of this UKSC judgment is to put those persons right back into that unsatisfactory intermediate zone.

The European Convention gets extensive coverage in the historical positioning sections of the UKSC judgment, but plays no part in the conclusions, and they feel able to say (judgment para 248):

Finally, we have concluded that a biological sex interpretation would not have the effect of disadvantaging of removing important protection under the EA from trans people (whether with or without a GRC)

I would agree, as long as that trans person never needs to visit a toilet at work or in a service provision location.

Fortunately for trans employees, the Workplace (Health Safety and Welfare) Regulations 1992 moderate access to workplace toilets.

The UKSC does not consider these, so any future claim involving them will hopefully come before a court that has remembered (or will be reminded of) its responsibilities under the Human Rights Act / European Convention.

The quality of UK Supreme Court reasoning

A book could be written about this aspect, but two instances should suffice to show the quality of the UKSC’s reasoning in sport and gender reassignment.

Sport

As previously understood, sport could lawfuly be split into men and women’s categories if it was a ‘gender affected activity’ namely that average persons of one sex had and advantage over average persons of the other sex with respect to strength, stamina or physique (EA s195(3)) but a further exception (s195(2)) for safety of fair competition permitted excluding a transsexual person. If a ‘biological sex’ definition of ‘man’ and ‘woman’ is adopted, a trans person cannot be playing in their affirmed gender and so are not there to be excluded, so the very existence of s195(2) shows that the ‘always biological sex’ analysis must be wrong. The UKSC get round this by saying the following (Judgment para 236):

But if, in addition, the providers of the boxing competition were concerned that fair competition or safety necessitates the exclusion of trans men (biological females living in the male gender, irrespective of GRC status) who have taken testosterone to give them more masculine attributes, their exclusion would amount to gender reassignment discrimination, not sex discrimination, but would be permitted by section 195(2).

This is plainly wrong because the reason for exclusion would be the taking of a performance-enhancing drug, not trans status. I challenge anyone to find a use for s195(2) under the UKSC’s regime.

Gender Reassignment

Section 7 of the EA is that which defines the protected characteristic of gender reassignment. This section alone brings the whole UKSC castle crashing down. Section 7(1) EA provides.

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The UKSC deal with section 7 at paragraphs 198 to 203 of the Judgment. Paragraph 200 ends with:

The critical process on which the section 7 characteristic depends involves a change in physiological or other attributes of what must necessarily be biological sex; but there is nothing to suggest that undergoing such a process changes a person’s sex as a matter of law. It does not. Indeed, a full process of medical transition to the opposite gender without obtaining a GRC has no effect on the person’s sex as a matter of law.

If ‘sex’ is biological sex in the sense of original birth certificate sex, this can never be changed and so either

1. trans people were a figment of parliament’s imagination in 1999 and 2010 (and a figment of the ECtHR) or
2. the ‘biological sex’ argument fails.

Further, I would love to have explained to me what the ‘other’ aspects of sex other than physiological ones are if sex must be biological sex. It makes no sense,

The Answer

The answer, of course, is that people are complex, and law to protect vulnerable citizens must be complex if it is to be comprehensive.

If we wish to accommodate trans people in some circumstances (e.g., toilets) but not others (e.g., provision of intimate care), then some complexity of language is required.

And as the UKSC themselves quote in paragraph 9 of their judgment, quoting from R(O) v Secretary of State from the Home Department:

‘Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a group of sections. Other provision in a statute and the statute as a whole may provide the relevant context.’

But, of course, ‘may’ includes ‘may not’. Something the UKSC seem to have forgotten when they formed their conclusions.

Life isn’t simple

With respect to the Supreme Court, if you try to make it ‘simple,’ it just will not work. We could simplify society immensely by removing women from voting, property ownership, and working in the professions, but that would not be right.

Similarly, excluding trans people or placing them in the Goodwin ‘intermediate zone’ (Judgment para 65) is unacceptable.

An example of simplification is the section on lesbians, paragraphs 205 to 209. The UKSC only heard from lesbians who wish to exclude trans people from their groups. They are a minority of the lesbian world, the vast majority of which accepts a trans woman in a relationship with a natal woman as a lesbian. The court makes no mention of this, presumably because they were not told so.

The danger of the Supreme Court hearing only from some interested parties and (without explanation) excluding others is neatly illustrated.

Stakeholders

Some of the above pitfalls might have been avoided if the two trans interveners, Professor Stephen Whittle and retired Judge Victoria McCloud, had been allowed to intervene. But no, they couldn’t have anything useful to say.

The treatment of stakeholders is no less odd when the intervening lesbian organisations are considered. They were universally anti-trans lesbian organisations who say that a trans woman cannot be a lesbian.

That is not the position adopted by many mainstream lesbian organisations, but it is clear that the UKSC did not consider whether the organisations before them spoke for lesbian opinion widely or just a small slice, with a particular view. Since the narrow view presented was supportive of the ‘biological sex’ position, the UKSC appear to have settled on an early stage in their deliberations, it is perhaps not surprising but no less disappointing that they turned a Nelsonian telescope to the wider lesbian world on this point.

What Next?

The Supreme Court have done a supremely poor job. Business, workers, service providers and users will now face a terrible mess and further litigation for years to come, including further trips to the European Court of Human Rights in Strasbourg. The lives of trans and cis people will be made more difficult, uncertain and unpleasant. Good DE&I programmes will be challenged and perhaps withdrawn or altered.

If we had a government with courage and political nous, they would step in to put this injustice right. The signs are not good.

Robin Moira White
23 May 2025

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CEO’s Note: I thank Robin for her comprehensive post and appreciate the distress both the judgment and the resulting Interim Update from the EHRC have caused the trans community, as evidenced by the hundreds of emails we have received.

TransLucent has engaged the Human Rights lawyers Leigh Day to fight for our human rights, and readers are invited to donate to our Crowdjustice campaign. We genuinely appreciate your support. Thank you.

LINK:     https://www.crowdjustice.com/case/bin-the-ehrc-single-sex-guidance/