Clearing up the mess of the Supreme Court’s trans equality ruling – an easy job for a politician

Clearing up the mess of the Supreme Court’s trans equality ruling – an easy job for a politician

In my previous article ‘A Supremely Poor Job’ I explained how the Supreme Court’s 16 April 2025 ruling in For Women Scotland gets the law wrong and substitutes a frolic of their own by the Supreme Court justices for the clearly expressed will of parliament that a person with a Gender Recognition Certificate should be considered a member of their affirmed and certified sex.

That ruling, contrary to the weasel words of the Supreme Court about how trans people remain protected, is already beginning to cause havoc among service providers and employers, the position made worse by the (IMHO) unlawful ‘interim guidance/update’ rushed out without request from government or a moment’s consultation by the laughably-named Equality and Human Rights Commission, who have gleefully seized on the excuse to make trans people’s lives more difficult.

Organisations like service providers, employers, universities and even the local pub now face difficult choices about whether they follow encouragement to banish trans people to inappropriate facilities (and how to ‘police’ that banishment); whether they make all facilities gender-neutral or, whether, at least for the moment, they carry on regardless, in the hope that government gets a grip on the mess.

Formal guidance is months away as the present EHRC consultation will not finish before the end of June (or mid-August if the Liberty judicial review succeeds). The thousands of responses then have to be assessed, reported on and factored into the final draft guidance and a report written to be passed to the government during the long summer break and not debated in parliament until the autumn.

Meanwhile, organisations have a choice about who they will be sued by – excluded or disadvantaged trans people or trans haters enraged that trans people are not being dropped down a well.

But it’s easy to solve

Firstly, the statements in Hansard, the notes to both the Gender Recognition Act 2004 and the Equality Act 2010, and the experience of all those involved at the time show that ‘certified’ not ‘biological’ (whatever that might mean) sex was parliament’s intention.

Secondly, it is simplicity itself, requiring a tiny amendment to put this right, and return to REAL clarity.

Section 212(1) of the Act includes a number of definitions including :

“man” means a male of any age; and
“woman” means a female of any age.

I followed the original passage of the bill through parliament closely, and these sections were to make plain that ‘man’ and ‘woman’ should be taken to include references to boys and girls in anti-discrimination principles an act that dealt with sports, and education as well as employment.

It will be noted that there is no definition of “male” or “female”

But it would be simplicity itself to extend these definitions to say:

“man” means a male of any age including a trans man with a gender recognition certificate; and

“woman” means a female of any age including a trans woman with a gender recognition certificate.

The position of those working towards certification would be analogous to those that even trans-hostile groups like ‘Sex Matters’ allow by ‘common sense’ to be included in single-sex spaces such as cleaners and children, just as we have had for years and was recognised in the AEA v EHRC case.

Which politician will have the moral courage to take this up?

Trans folk and allies should be proposing this to their representatives. Those who do not will not be treated well when history comes to be written. I am a political atheist and the most floating of voters, so draw no ‘political’ conclusions from my remarks. I have given the same advice to members of all five main political parties (other than Reform).

The present Labour government is in a particular bind.

It’s apparent that the present strategy of trying to steal Reform’s clothes plainly isn’t working. There are those who suggest it might like to try being a socialist party.

Fancy that!

If it doesn’t tackle this issue now, Labour is likely to have to deal with the consequences of rulings of the European Court of Human Rights in Strasbourg – which I confidently predict will not be impressed by the UK winding the judicial clock back to before the 2002 cases of Goodwin and ‘I’ v the UK which established the duty on a convention state to have effective gender recognition procedures.

The UK Supreme Court just wrecked that with its curious ruling. The Strasbourg results should just appear in time for the next UK general election. So much better dealt with now. But might this be an opportunity for a private member’s bill with cross-party support?

I would recommend that UK trans people, supporters, allies, unions, and businesses use the influence they have to promote the minor amendments set out above urgently when parliament resumes in the autumn.

If there need to be further minor amendments to equality provisions, for example to increase privacy at work, or allow that minority of lesbians who define their sexuality in strictly biological terms to form associations and the like, so be it, but calm, tolerance and sense – real British values – can return in the meanwhile.

Robin Moira White
13 June 2025