Rushing Supreme Court trans judgement is likely to breach human rights

The Herald Scotland

2 days ago

The commission rushed out an 'interim update' that lacked clarity, nuance, human rights considerations, nor the full range of what may be appropriate within the law. They opted for blanket exclusion of trans people – and rightly have faced considerable challenge.
We then saw their public consultation on their draft Code – this too told only half of the likely legal story. It detailed how services could exclude trans people but not how they might remain inclusive, as per their human rights duties. We do not believe that the Supreme Court's ruling implies blanket exclusion; if it does, the law needs to be changed as soon as possible.
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The ruling said that 'sex', for the purposes of the Equality Act 2010, means 'biological sex'. It did not then follow this statement with 'and that means that trans women cannot access women's services.' It didn't even define biological sex, nor woman - other than when it is used in the provisions of the Equality Act. It did say, clearly, that trans women should not be subject to discrimination. The court also said that they had a 'more limited role which does not involve making policy.' Their ruling did not ascribe ANY policy changes.
Organisations must follow the law, sure - but what does that look like in practice? There isn't certainty about what those changes should be that would mean people are indeed doing so. It is important that there is clarity on what the law really means in practice for all.
The primary legal narrative being pushed by some is the one suggesting that all trans people should be segregated and / or that trans people should be barred from accessing services that they need. This is dangerous, seemingly ignorant of human rights obligations and an incomplete narrative. Though it may be fair for the commission to say that their final code cannot cover every service and every eventuality, it surely must enable people to make lawful decisions, and to decide whether they will or will not allow trans people to use services in line with who they are. We believe this can be done lawfully, but this part seems to be missing.
At Equality Network we agree (even with those people with whom we profoundly disagree about what the changes should entail) that all organisations need to be operating within the law. We too are very aware that the law effectively 'changed' when the judges made their ruling. It of course turned previous understanding of how the Equality Act was meant to work with regards to trans people on its head. We, among thousands of others, were surprised at this new revelation - and apparent decades of misunderstanding and implementation.
Despite the fact that it was a profound change to how people had previously understood the law to work, this change only applied to the question of whether trans people with gender recognition certificates (GRCs) (which is a tiny percentage of trans people) were to be considered as their birth sex for the purposes of the Equality Act.
Prior to the judgment, people who had a GRC were believed to have changed their sex in the law (all law), and that sex was protected by the 'sex' part of the Equality Act. However, with sex now being understood for the purposes of the Act as 'biological sex', this is no longer the case. Though the court confirmed that trans people ARE still protected by Gender Reassignment (GR) protections. However, a much larger percentage of trans people do not have a GRC – these people are of course also still protected by GR protections within the Equality Act. Nothing here has changed following the ruling.
Given that the huge majority of trans people, before the Supreme Court ruling, were already considered in the act to be their "biological sex", it isn't at all clear that there is now a legal requirement to exclude trans people from all services that align with their gender identities, nor force them to use only segregated spaces and /or services or spaces exclusively aligned with their 'biological sex' as recorded at birth. There wasn't this requirement before, and nothing has changed about that part of our understanding of how the law works.
So while we totally agree that organisations should follow the law, it is patently obvious from the vast and various responses and debates among people of many stripes and flavours about what it means, that anyone who is selling certainty (and pushing demands for trans people to be excluded and segregated in all circumstances as what is actually required) is massively, and harmfully, overplaying their hand.
Organisations are being pressured to change the way they operate to become less inclusive despite it being patently evident that this would be deeply harmful to trans people, and without alternative to better that situation. Many, rightly so, are in no rush to do that ahead of sight of complete finalised guidance that incorporates full and accurate information on how the law stands - and on how they might go about delivering their inclusive services within the law.
The implications of the Supreme Court judgment, and the developing guidance on its implementation, will have a significant impact on the lives of trans people. This must be recognised and given due time and consideration. From some (loud and impatient) quarters there is a push to implement exclusionary practice now. But it remains unclear that the law allows or even supports that. We don't believe it does.
As it stands, the draft code is unworkable and harmful. It details only how services can be exclusionary and asks, 'is that clear?' It is as clear as mud. We hope that it is fixed ahead of being laid at UK Parliament for approval. If it isn't, it will be necessary to clarify the law by adjusting the Equality Act. Otherwise, trans people are at serious risk of multiple breaches to their human rights to safety, dignity and privacy.
We would hope for a code from our national equality and human rights body that considers the equalities and human rights of those most marginalised and details how services can cater for all whilst remaining lawful. If the Code doesn't do this, it is not doing its job, and nor is the commission.
The Code of Practice consultation has only just closed, with over 50,000 responses in total. To analyse those properly will take time. In the meantime, despite what some may say, there is not legal clarity. To push for exclusionary implementation, with significant likelihood of harm, having not first analysed the responses to develop a comprehensive and legally holistic code, is deeply concerning. The commission should be supporting public bodies to carry out their responsibilities effectively and inclusively for everyone. Nobody, not even they, know yet how inconsistencies in the draft code are to be resolved, and how the code is to be made compatible with human rights requirements. Only with such an explanation will public bodies be in any position to responsibly 'follow the law'.
Dr Rebecca Don Kennedy is chief executive of the Equality Network