On 16th April, the Supreme Court made a landmark ruling that the terms “man”, “woman” and “sex” in the Equality Act 2010 (EA 2010) refer to biological sex rather than certified gender or acquired gender.
Background
The original trigger for the appeal was the Gender Representation on Public Boards (Scotland) Act 2018 (ASP 2018), which counted trans women with gender recognition certificates as contributing to the aim of increasing representation of women on public boards.
The rationale for the Supreme Court in reaching this decision is that:
- The use of “sex” must be consistent across the entire Act,
- Sections on pregnancy, maternity, single-sex spaces, and gender-specific services require biological definitions to function properly,
- The ASP 2018 guidance is incompatible with the EA 2010, and Section 9(3) of the Gender Recognition Act (GVRA 2004) allows such an exception.
Importantly, this interpretation of the EA 2010 does not remove protection from trans people, with or without a GRC. Trans people are protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex. In the light of case law interpreting the relevant provisions, a trans woman can claim sex discrimination because she is perceived to be a woman. A certificated sex reading is not required to give this protection.
Equality and Human Rights Commission
The EHRC is now working to incorporate the implications of the Supreme Court ruling into its revised Code of Practice which is designed to support service providers, public bodies and associations to understand their duties under the EA 2010, and to put them into practice. The revised Code is due to be laid before Parliament before the Summer recess and is going to review its single-sex services guidance as a matter of urgency.
The chairwoman of the Equality and Human Rights Commission, Baroness Falkner said: “This judgment from the Supreme Court has significant implications for the interpretation of Britain’s equality laws. We welcome the clarity this ruling brings; its importance to those whose rights are affected under the Equality Act cannot be overstated.
“The central issue raised by this appeal was how ‘sex’, ‘man’ and ‘woman’ are defined in the Act. Our submission to the Court highlighted significant problems with the practical application of a definition of ‘sex’ which allowed those who have acquired a Gender Recognition Certificate (GRC) to be treated as their certified sex in the Equality Act. These inconsistencies impaired the proper functioning of the Act and risked jeopardising the rights and interests of women and same-sex attracted people.”
What it means for single-sex spaces
The Supreme Court ruled that trans women with a GRC can be excluded from single-sex spaces if this is ‘proportionate’ and gave examples of rape or domestic violence counselling, refuges, rape crisis centres, female-only hospital wards and changing rooms. A UK Government spokesperson said, “Single-sex spaces are protected in law and will always be protected by this Government.”
Membership of The Survivors Trust
As part of their membership criteria, TST Member Agencies sign up to our code of conduct and survivor empowerment ethos. In 2024, The Survivors Trust established the only UK externally accredited service standards for specialist rape and sexual abuse support services (UKAS – United Kingdom Accreditation Service). The standards make clear that services need to be gender aware and gender informed and to offer their services to survivors according to a trauma-informed survivor empowerment ethos.
Since it was first established in 2000, The Survivors Trust has welcomed all agencies that work according to our code of conduct and ethos. Our Member Agencies offer life-changing and life-saving services to women, men, children and young people. Many of our Member Agencies offer counselling, advocacy and support to all survivors, some offer gender-specific services.
Our guidance for Member Agencies providing single-sex services continues to be to offer their clients trauma-informed choice according to the preferences and needs of their clients. This could mean offering services for women and trans women and men and trans men separately, depending on the service offered and the choices of the survivors seeking support. For single-sex services or agencies providing single-sex spaces, the ruling clarifies that it is proportionate for them to exclude trans women or trans men, regardless of whether a GRC is held.
If agencies are unable to offer a service for trans people, it is essential that they establish referral links with other appropriate services, and ensure their eligibility criteria is clear and provide supportive information or links to information for trans survivors.
Challenges
This is a particularly vulnerable time for the specialist sexual violence and abuse voluntary sector, which is currently facing an unprecedented funding crisis alongside an ever-increasing demand and higher referrals. Our Member Agencies provide crucial trauma-informed support, counselling and advocacy for in excess of 100,000 victims and survivors each year and without charge. However, despite making the best use of every £1 they receive, many of our Member Agencies are having to manage their budgets by reducing services or even making staff redundant. The pressure on these vitally important specialist services is excessive but they show remarkable determination to maintain the quality of their services for all survivors in the face of funding restrictions.
