Equality Act 2010: Adjudicating FWS v SG Case

An opinion article, authored by Linda Wall.

Equality Act 2010: Adjudicating FWS v SG Case

Adjudicating on the For Women Scotland case, the Supreme Court set itself the task of “establishing the correct interpretation of the Equality Act 2010”. It’s strange therefore that they placed so little emphasis on the context of the legislation, didn’t analyse the parliamentary debates, and didn’t hear from any of the principals involved in shaping the Bill. This is a small contribution towards redressing the balance.

The 2nd Reading of the Bill was on 11 May 2009. Opening the debate, the Minister for Women and Equality Harriet Harman told the House that “Everyone has the right to be treated fairly, and everyone should enjoy the opportunity to fulfil their potential.” There were more fine words from the Solicitor General Vera Baird drawing the debate to a conclusion:

“For poorer people, black, white, old, young, straight, gay, women or men, disabled or able bodied, this Bill will enlist public authorities to come to your aid and alleviate your socio-economic disadvantage. For believers and non-believers struggling with bias, this Bill will help you. For our gay, lesbian and transgender fellow citizens, we honour your struggle and we are legislating to see it fulfilled: you may think that this Bill is for you.

To disabled and older people: this Bill is undoubtedly yours. It is amazing that any party could seek to vote down your undeniable moral rights—that any party would try to choke them off is quite amazing. To black and minority ethnic people we say: here is your future. Heightened opportunities and fair treatment are in sight; this Bill is for you. To women—half the population, hamstrung by low pay and historic discrimination—here at last is a great lever to change culture. This Bill is undoubtedly for us.”

Note how different the language is from that of the gender critical community. The term “sex-based rights” is entirely absent from the Bill and from the debate. What the MPs believed that the legislation could do for women was to alleviate their socio-economic disadvantages by tackling discrimination (with a focus on the workplace), and low pay.

It was in this context that “positive action” was discussed. Previously, the Sex Discrimination Act 2002 had legalised positive discrimination in the selection of candidates by political parties. The Labour Government now proposed to allow employers to use positive action in recruitment and promotion. This was a cautious step into a politically controversial area: employers would only be able to discriminate in a tie-break situation where candidates were equally qualified, and only when the protected group was under-represented. There was some lively debate as to whether this measure would be to the advantage or detriment of businesses.

Why did the architects of the Bill not make it clearer what they meant by “women” ? The most obvious answer is probably the correct one: there was no reason for them to do so. Not because of any preconceived idea that trans women weren’t women, but because the aim was to give protection to everyone who needed it. The fact that trans people suffered from discrimination in employment was well-established. For example, a 2009 EHRC research paper found that trans people were at high risk of being in lower paid jobs (often in the public sector), of having problems with debt, and of experiencing discrimination and harassment at work.

In its submission to Parliament for the Equality Bill debate, the EHRC argued that everyone who fell under the trans umbrella required protection:

“The Commission welcomes the removal of the requirement to undergo medical supervision. However the explanatory notes set out the intention that the Bill should prohibit discrimination against those who are perceived to belong to a protected group, or associate with people from that group, including on the grounds of someone’s perceived gender reassignment. This is potentially of significant benefit to those who experience discrimination on grounds of their gender identity, but who are not protected under the current definition as they do not intend to live full time/permanently in their acquired sex (which is about 40% of transgender people). “

Discrimination by perception is an integral part of the Equality Act. It’s unlawful to discriminate against someone because you perceive them to be trans – or because you perceive them to be a woman. This is why it’s perverse to make out that the term “woman” in the Act refers to a person’s “biological sex”. The provisions against gender discrimination are explicitly intended to benefit anyone perceived to be a woman.

Clearly, a person can have multiple protected characteristics. A person can be trans and be female just as easily as they can be disabled and a Christian.

In the Parliamentary debates, a few concerns were raised over potential conflicts between different protected groups, mainly by right-wing Tories hoping to sabotage the Bill:
Graham Brady: “As I put it to the Minister for Women and Equality, is it not the case that, under these proposals, an employer could choose to employ a white woman in preference to an equally well-qualified black man? She did not directly answer the question, because the answer is yes. So we are actually setting out a hierarchy of different, competing equalities.”
The example is spurious, because in order to exercise positive action in this situation, an employer would need to be able to show that female applicants to their workplace are disproportionately disadvantaged while black applicants are not. More generally, it was the hope of legislators that the Act would help to avoid this kind of conflict by establishing a framework of rights that gave more or less equal protection to all protected groups.

A few years earlier, the Equality Act 2006 had brought the EHRC into being. The EHRC replaced three bodies representing differing equalities strands: the Commission for Racial Equality, the Disability Rights Commission, and the Equal Opportunities Commission. Part of the EHRC’s founding purpose was to help to resolve any conflicts between protected groups that may arise. The same sense of mission lay behind the Equality Act 2010.

The question of access of trans people to single sex spaces didn’t come up in the parliamentary debate. The only inference that can reasonably be drawn from this is that MPs didn’t see this as difficult or contentious. This wasn’t due to any differences in interpretation. It was clearly understood that a purpose of the Act was to legislate against discrimination on grounds of gender reassignment, and that this meant making services trans inclusive as far as possible.

The Statutory Code of Practice to the Act was clear:

“If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate aim.”

It gives the example of changing areas in a clothes shop, where “it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles”.

Prior to 2021, the EHRC echoed this position. Only in very limited circumstances would it be appropriate to provide a single-sex service that was trans-exclusionary. See for example the EHRC’s response to the GRA consultation, which was written in October 2018 when they’d already been subjected to lobbying by gender critical organisations:

“Separate-sex services (whether equal or different for each sex) and single-sex services (only to persons of one sex) are permitted under Schedule 3 to the EA 2010 where it is proportionate because a joint service for both sexes would be less effective or it would not be reasonably practicable because of the extent to which the service is required by one sex. A single-sex service could be appropriate, for instance, where services are used by two or more people at the same time and users of one sex might reasonably object to the presence of a person of the other sex.

Paragraph 28 of Schedule 3 permits different treatment of trans people in ‘anything done in relation to’ the lawful operation of separate services for the sexes and single-sex services, provided such conduct is objectively justified – ‘a proportionate means of achieving a legitimate aim’.

As an exception to the general principle of non-discrimination, upon which the EA 2010 as a whole is based, these exceptions apply only in situations where it is both appropriate and necessary. The action taken under the exception must be rationally connected to a legitimate aim. Where there are alternatives, the least discriminatory approach must be pursued, striking a fair balance in the particular circumstances of each case between the relevant interests of trans people, service providers and other service users.”

The Equality Act hasn’t changed, despite the perverse Supreme Court judgment. What’s changed is the EHRC itself.

The great mistake that the last Labour Government made when establishing the EHRC was not to give it proper independent status. The three predecessor Commissions were all non-departmental public bodies, and the EHRC was set up on the same basis. This meant that it was accountable to Ministers, rather than, as some had called for, being accountable to Parliament. So it was that in 2010 the Minister for Women and Equalities, Liz Truss, was able to stack the EHRC Commissioners with people committed to a trans-hostile agenda. The political nature of the appointments can be inferred from the Minister’s comments in a keynote speech in December 2020 when she bragged about appointing people “ready to challenge dangerous groupthink”.

The EHRC interim guidance of April 2025 is extraordinary and bizarre. It purports to ban trans people from using gender appropriate toilets and changing facilities. This goes directly against the central purpose of the Equality Act which was to eliminate unlawful discrimination; and contravenes the EHRC’s own mission statement – “We are an independent statutory body with the responsibility to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote the human rights of everyone in Britain.”

The Labour Party is proud of its past record in introducing equality legislation. That record has recently become rather sullied. If the Party wishes to restore its good reputation, a good place to start would be by declaring that all toilets will remain trans inclusive indefinitely, and by taking urgent steps toward replacing the EHRC with an independent body under new leadership.

…………………………………………………………….

We thank Linda for her article.

As always is the case, guest articles may not represent the opinions or views of TransLucent.Org.UK