Transgender Rights UK : Navigating the New Landscape

Transgender Rights UK

Your Rights as a Transgender Person After the Supreme Court Judgment

Firstly, a message from TransLucent

We know that the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers UKSC 16 (often referred to as the FWS judgment) has created significant concern and uncertainty within our transgender community. At TransLucent, we want to assure you that trans people are still protected from discrimination under the Equality Act 2010 (EA 2010).

While this area of law is undoubtedly complex and still developing, it’s crucial to understand your rights and how to navigate this evolving landscape. However, because the law is not yet clear and is unlikely to be clear for a significant period of time, this post should be considered a guide only and not specific legal advice. In some instances (for clarity), we use some language which may be outdated or considered offensive.

Understanding the Core Ruling: “Biological Sex” in the EA 2010:

The Supreme Court’s core finding is that, for the purposes of the EA 2010, the words “sex”, “woman”, and “man” mean (and were always intended to mean) biological sex, biological woman, and biological man [19, 264, 265(x)].

This means that anyone assigned male at birth (including trans women, even with a Gender Recognition Certificate) is considered a man for EA 2010 purposes, and anyone assigned female at birth is a woman. The judgment states that the definition of sex in the EA 2010 is binary: a person is either a woman or a man.

Crucially, this ruling also clarified the effect of a Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (GRA 2004).

While a GRC changes a person’s legal gender “for all purposes” under the GRA 2004, the Supreme Court has now qualified this for the EA 2010, stating that a GRC does not change a person’s legal ‘sex’ for the purposes of the EA 2010. So, even with a GRC, your “sex” for EA 2010 purposes reverts to that indicated on your original birth certificate.

Continued Protection from Discrimination:

Despite this interpretation of “sex,” the Supreme Court explicitly stated that its decision “would not be disadvantageous to or remove protection from trans people with or without a GRC”. This is a critical point that needs to be widely understood.

Here’s how these protections primarily operate:

Gender Reassignment is a Protected Characteristic: Trans people are primarily protected from discrimination and harassment under the separate protected characteristic of ‘gender reassignment’ [12, 43, 265(iii), 395]. This protection applies regardless of whether you have a GRC in place.

Discrimination by Perception or Association: Even if “sex” is defined biologically, direct sex discrimination can still occur if you are treated less favourably because you are perceived to be a certain sex (e.g., perceived as a woman, even if biologically male) or if you are discriminated against due to your association with a protected characteristic. This means that a trans woman (a biological male with or without a GRC) can still claim sex discrimination if she is discriminated against because she is perceived as a woman.

Indirect Discrimination: Transgender people are also protected from indirect discrimination. This applies where a policy puts a group (like transgender people) at a particular disadvantage, and it cannot be justified. The EA 2010 also extends this to individuals who do not share the protected characteristic but suffer the same disadvantage.

Single-Sex Services (Nuance and Options):

The FWS judgment significantly impacts single-sex service provisions (such as homeless shelters, rape or domestic violence services, hospital wards, and changing rooms).

Ability to Exclude (if proportionate): Service providers are allowed to offer separate or single-sex services based on biological sex and can exclude trans people if this is a “proportionate means of achieving a legitimate aim”. Examples of legitimate aims include privacy, safety, or decency.

No Obligation to Exclude: However, and this is a crucial point, service providers are not obliged to exclude trans people from their services and can continue to include them without breaking the law.

Our legal advisers note that service providers can opt to operate trans-inclusive or mixed-sex services.

Risks for Service Providers: If a service provider does choose to exclude trans people, they must illustrate that their decision is proportionate and the least restrictive measure to achieve a justifiable aim. If a trans person is left without access to any service (e.g., because no alternative is available, or they are uncomfortable using a “biological sex” service), they may be able to claim unlawful discrimination based on gender reassignment.

“Mixed-Sex” Services: A trans-inclusive service is now unlikely to be considered a “single-sex service” for the purposes of the EA 2010. This means it cannot rely on the specific defences available to “single-sex services” if a cisgender man were to challenge his exclusion.

Avoiding Litigation: Service providers may feel by offering extra “gender-neutral” or “unisex” facilities could reduce the risk of litigation. Other options to consider (for example) could be marking toilet doors or changing rooms as “toilets with urinals and cubicles” and “toilets with cubicles only” or “people who identify as women” and “people who identify as men”.

This is a complex and technical area of law, and TransLucent strongly advises service providers to seek bespoke legal advice when navigating their policies to balance the needs and rights of all users, so to reduce the potential for discrimination claims from transgender people or those with religious or cultural customs, or those with gender-critical/transphobic views.

Confidentiality and “Sex Checks”

The Supreme Court reinforced the confidential status of a GRC.

This means:

• You are not obliged to disclose that you are trans to anyone, and your GRC (if you have one) is confidential.
• Duty-bearers (like service providers or employers) cannot ask whether a GRC has been obtained.

“Sex checks” (asking for evidence of sex, like a birth certificate) could be challenged as potentially discriminatory and/or a breach of Article 8 (right to respect for private and family life) of the Human Rights Act 1998. These checks are also likely to be impractical to implement.

Your Rights in the Workplace:

The EA 2010 continues to protect trans people from harassment and discrimination in the workplace.

Protections under Gender Reassignment and Sex: Your primary protection comes from the ‘gender reassignment’ characteristic. However, protections under ‘sex’ can also apply through claims based on association, perception, or ‘same disadvantage’.

Examples of Unlawful Discrimination/Harassment: This includes refusing you hours, promotions, or equal pay; denying training or benefits; unfair dismissal; or not addressing transphobic harassment like unwanted jokes, name-calling, spreading rumours, or being ignored/excluded.

Victimisation: You are protected from victimisation – being treated unfairly for reporting discrimination or giving evidence in a case.

Public Sector Equality Duty (PSED): Public authorities (including many employers) must continue to have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations for all protected characteristics, including gender reassignment. This remains a basis for challenging non-compliance.

Interactions with the Police:

While the FWS judgment applied directly to the EA 2010, some police forces are making interim changes based on their interpretation of ‘sex.’

Search Policies: The British Transport Police, for example, has announced that same-sex searches in custody will now be undertaken in accordance with the biological birth sex of the detainee as an interim measure. It is important to note that the statutory basis for these searches (Police and Criminal Evidence Act 1984 – PACE) was not directly addressed by the FWS judgment.

Your Rights: You are under no obligation to tell the police that you are trans. If arrested, you can respond with “no comment” until you’ve spoken to a solicitor. If you are searched by an officer of your assigned “sex” at birth, this could be grounds for unlawful discrimination based on gender reassignment. In this scenario, TransLucent advises seeking legal advice.

Hate Crime:

Any crime motivated by your gender reassignment (or other protected characteristics), or where the perpetrator demonstrated hostility based on your gender reassignment, is a hate crime. This includes physical violence, threats, sexual harassment, or other criminal acts.

Your Right to Report: It’s up to you to decide if you believe an incident was motivated by hate. If you report it as such, it can lead to harsher sentencing for the perpetrator.

Support Services: Independent charities like GALOP and Victim Support can provide support, whether or not you choose to report to the police.

Key Takeaways and How to Protect Yourself:

The legal landscape is uncertain and rapidly developing, with further legal challenges expected. Many of the approaches described in legal guidance, including trans-exclusive ones, are untested in court and carry a degree of risk.

Stay Informed: Keep an eye on updates from TransLucent and other reliable advocacy organisations.

Know Your Rights: Familiarise yourself with the protections under ‘gender reassignment’ and how ‘sex’ discrimination can still apply (perception, association).

Seek Legal Advice: If you experience discrimination, harassment, or victimisation, or need clarity on a specific situation, seek bespoke legal advice from a qualified solicitor or legal clinic. Organisations like Trans Legal Clinic and Citizens Advice can help.

Prepare for Single-Sex Spaces: Research services’ inclusion policies in advance. Consider using gender-neutral facilities if available, or if you are concerned, remember that you can have a friend or ally accompany you for support.

Document and Report: If you are stopped or challenged, video the event and try to get names and reasons, write down everything that happened, and make a formal complaint.

Workplace Advocacy: We strongly recommend joining a union (or possibly your employer’s LGBTQLGBTQ LGBTQIA+ is an inclusive term that includes people of all genders and sexualities, such as lesbian, gay, bisexual, transgender, questioning, queer, intersex, asexual, pansexual, and allies. While each letter in LGBTQIA+ stands for a specific group of people, the term encompasses the entire spectrum of gender fluidity and sexual identities. https://abbreviations.yourdictionary.com/what-does-lgbtqia-stand-for-full-acronym-explained.html https://en.wikipedia.org/wiki/LGBT+ network). Understand your workplace’s trans policy, and talk to your manager about any concerns.

Statutory Declaration Signees: While the specific ground for claiming sex discrimination in single-sex spaces has been narrowed, the transsexual person who has signed a statutory declaration still has multiple and significant avenues for legal recourse.

These include claims based on gender reassignment discrimination, harassment, direct discrimination by perception/association, indirect discrimination, breaches of the Public Sector Equality Duty (for public bodies), and challenges under the Human Rights Act. The service provider’s obligation to ensure proportionality and offer reasonable alternatives will be central to defending any such claims. This area of law remains “complex” and “uncertain”, with ongoing legal challenges likely to provide further clarity.

Conclusion: While the FWS judgment presents challenges, it does not leave you without human rights. Your rights to safety, dignity, and privacy are paramount, and you still have comprehensive legal human rights.

We will continue to advocate tirelessly for your rights, ensuring all trans people in the UK can live safely and with dignity.

In solidarity,

The TransLucent Team

Addition: 04/07/2025 15:14 hrs

Following the Supreme Court’s For Women Scotland judgment, we’re providing further guidance on “sex” under the Equality Act 2010 (EA 2010). We stress this is not specific legal advice.

The Court definitively ruled that “the meaning of the terms ‘sex’, ‘woman’ and ‘man’ in the EA 2010 is biological and not certificated sex”. This means, for sex discrimination purposes, a trans woman with a Gender Recognition Certificate (GRC) is considered male, and a trans man with a GRC is considered female. This impacts direct sex discrimination claims based on acquired legal sex.

Furthermore, single-sex services are now legally interpreted as being based on biological sex for the purposes of the EA 2010’s exceptions. A service provider is not obliged to exclude trans people.

Trans people retain significant protections. These include claims based on gender reassignment discrimination, harassment, direct discrimination by perception/association, and indirect discrimination. The Public Sector Equality Duty also remains in effect.

The legal landscape remains complex. We strongly advise seeking bespoke legal advice for any specific concerns or incidents.