Activists who question the legitimacy of last week’s Supreme Court ruling on the definition of sex in the Equality Act are ‘helping nobody’, according to an EHRC commissioner.

On 16 April, in For Women Scotland vs The Scottish Ministers, five Supreme Court judges unanimously ruled that the definitions of women and sex in the Equality Act 2010 refer to biological sex.

Previously, many had interpreted that a “woman” for the purposes of the act was either a biological woman or a trans woman (biologically male) who held a gender recognition certificate.

On Saturday, thousands of protesters marched in Westminster against the ruling, holding placards including “Trans rights are human rights” and “Trans women are women”.

Writing in The Times, Akua Reindorf KC, one of eight commissioners for the Equality and Human Rights Commission (EHRC) and a fee-paid employment judge, said that, while people should be involved in debate about law reforms, “questioning the legitimacy of the judgment on misconceived grounds is irresponsible”.

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The EHRC intervened in the appeal, arguing that including trans women in the definition of a woman caused intractable problems for the rights of women and LGB people. In its 88-page judgment, the Supreme Court agreed.

Reindorf said: “Unless the legislation is changed, the judgment is the final word on the defining question of the debate: what is a woman? The answer – at least in discrimination law – is that a woman is a person who was born female.”

She said that, while the law in this area is complex, the judgment is a “model of clarity” and provides a solid foundation for approaching consequential issues.

Wishful thinking

“Lively critical discussion is vital to civic life and democratic participation,” said Reindorf. “Unfortunately, on this occasion, much of it has been fuelled by misunderstanding, wishful thinking and distortion.”

She added: “Single-sex facilities are mandatory in workplaces and schools. The judgment has put it beyond doubt that the Equality Act, with other legislation, requires these to be provided according to biological sex.”

A service can be designated as single-sex if it meets conditions set out in the Equality Act. If that designation is made, then the service must admit only people of one biological sex. Otherwise, it ceases to meet those single-sex conditions, and must admit all members of the opposite sex.

“It is not arguable that the law of indirect discrimination because of gender reassignment can be used to circumvent these principles,” said Reindorf.

She also criticised the assertion that an employer or service provider must justify excluding trans people from single-sex provision in accordance with their lived gender, and that this must be done on a case-by-case basis. This assertion has referenced the legal justification test of “proportionate means of achieving a legitimate aim”.

“Again, this is false,” said Reindorf. “Operating a service or sport on a (biological) single-sex basis must be justified by showing that separating the biological sexes is a proportionate means of achieving a legitimate aim. Nothing further is needed to show that trans people should not be permitted to use the service in accordance with the sex in which they identify. Case-by-case decisions should not routinely be made: a single-sex rule must be predictable and consistent.”

She added: “Lawyers, politicians and journalists must be mindful that their voices carry weight. It is irresponsible to make ill-informed or lazy challenges to the carefully reasoned decision of the country’s most exceptional legal brains.”

Trans voices

Reindorf also dismissed claims that the Supreme Court’s ruling excluded trans voices because judges did not allow interventions from two trans individuals in the case.

“The Supreme Court does not hear evidence about lived experience; it considers legal arguments. A proposed intervener must show that they can make a distinctive contribution to the legal argument and assist the court with issues that go wider than their personal interest.”

She added that no trans advocacy groups intervened. Nevertheless, their case was “made thoroughly” by leading practitioners for Amnesty and for the Scottish government.

“Undermining the legitimacy of the judgment on such misconceived grounds helps nobody, and is all the more regrettable against the backdrop of misinformation that has been disseminated about the law relating to sex and gender from ostensibly trustworthy sources over many years,” she concluded.

The EHRC is updating its guidance on the subject with a revised code of practice which, subject to ministerial approval, is expected to be laid before Parliament in the summer.

Reindorf added that employers, service providers, sporting bodies and other duty-bearers under the Equality Act should urgently review their policies and practices, using “reliable specialist advice that does not emanate solely from interested lobby groups.

“What is needed is constructive dialogue about how the law can work for everybody, based on a shared and accurate understanding of the law as it is, rather than the law as activists would prefer it to be.”

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