What Supreme Court's gender ruling means for workplaces, hospitals and sports
Five senior judges decided unanimously that the definition of a woman and sex in the 2010 Equality Act relates to "a biological woman and biological sex".
The judgement follows a legal challenge brought by gender critical campaigners For Women Scotland (FWS), who have criticised including trans women in the definition of "woman" in Scottish legislation.
The latest decision in the long-running legal dispute could have wide-ranging implications for trans women, cis women and other members of the LGBT+ community throughout the country.
UK Supreme Court judge Lord Hodge read out the summary of their decision stipulating that the Scottish government was incorrect in classifying trans women with a Gender Recognition Certificate (GRC) - a legal document that affirms an individual's affirmed gender - as women.
FWS director Trina Budge said the ruling 'clarifies women's rights' and we now 'know that when we see women-only spaces it means exactly what it says – no men'.
However, trans rights campaigners have declared the decision as 'incredibly worrying" for the trans community, and say they may now face exclusion from some single sex spaces and that it paves the way for discrimination and transphobia.
The legal action was initially brought by FWS in 2022 after judges in Edinburgh ruled trans women with a GRC could sit on public boards in posts reserved solely for women.
Scotland's First Minister John Swinney said the government accepts the judgement and will now engage on the 'implications of the ruling'.
But it could also have far-wider implications for everyday single-sex services like refuges, prisons, toilets and hospital wards.
The 88-page legal decision ruled that trans women, even those with a GRC, can be excluded from single-sex spaces - if "proportionate" to do so.
However, trans activists say that there has always been an exemption that enables some people to be excluded from certain spaces, often in religious areas and women's refuges.
The judgment itself gives examples of places where such exclusions may take place, such as within rape or domestic violence counselling, refuges, rape crisis centres, female-only hospital wards and changing rooms.
A UK government spokesperson emphasised this point, saying: "We have always supported the protection of single-sex spaces based on biological sex. This ruling brings clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs.'
The issue of trans women in sports in particular has made headlines in recent years, with sports such as athletics and cycling barring trans women from women's events.
The English FA just days ago allowed trans women to continue to compete in women's football in England provided they meet stricter eligibility criteria, following protests in November.
The judgment confirms that a person may be excluded from participating as a competitor in a "gender-affected sport" if that was 'necessary to secure fair competition or the safety of competitors'.
A 'gender-affected sport', defined by the judges, is one where 'the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport.'
How this wording will be interpreted by various sporting bodies remains to be seen.
Just hours after the verdict was announced the health board involved in an ongoing employment tribunal regarding a transgender doctor said they would consider its 'implications'.
Nurse Sandie Peggie took the Fife Health Board and Dr Beth Upton to tribunal after being suspended from her work when she refused to share a changing room with Dr Upton, a trans woman.
The tribunal is expected to resume in the summer after evidence was heard earlier this year - but the Supreme Court judgment could now impact the outcome of that case.
A spokesperson for the health board said: "NHS Fife notes the clarity provided by today's Supreme Court ruling regarding the legal definition of a woman.
'We will now take time to carefully consider the judgment and its implications.'
With the judge's decision still being assessed by invested observers, much of the immediate implications could be 'symbolic', according to some trans rights activists.
Jane Fae, a director of TransActual, an organisation that works to defend the rights of trans people, told Yahoo News after the ruling: 'It has been a tough morning, a lot of people are in bits. It's a hard day for trans people.
'I have been in contact with lawyers who are still digesting the impact of this ruling. However, they say that this is a bizarre ruling, and the future is not at all clear.
'The immediate impact is that the ruling is symbolic, and many feel like they have been told they should not exist. But hypothetically legal action could follow.
'It is not clear what the consequences will be. We suspect there will be lots of misinformation and uninformed people may create exclusions in public spaces where there does not need to be any.'
LGBTQ+ charity Stonewall chief executive Simon Blake said there was 'deep concern at the widespread implications' of the ruling.
Mr Blake said: 'It's important to be reminded the court strongly and clearly re-affirmed the Equality Act protects all trans people against discrimination, based on gender reassignment, and will continue to do so.'
Conversely, chief executive of the LGB Alliance charity Kate Barker said the ruling 'marks a watershed for women' and allows lesbians to create social groups without trans women.
She said: 'The ruling confirms that the words 'gay' and 'lesbian' refer to same-sex sexual orientation and makes it absolutely clear that lesbians wishing to form associations of any size are lawfully entitled to exclude men – whether or not they possess a GRC."
What could this mean for employers?
As legal minds pick over the landmark decision, some have indicated it will give greater clarity for employers on issues surrounding single-sex spaces.
The legislation does state that this can only occur, however, if the justification is "reasonable and proportionate".
Phillip Pepper, employment partner at law firm, Shakespeare Martineau, said the decision can 'offer long-term clarity for businesses' who were left interpreting ambiguous legislation.
He said: 'Whilst that process is ongoing, employers should take extra care to ensure that transgender employees feel safe, represented and valued in the workplace.
'Employers may have to rethink their policy towards single-sex spaces in the workplace, such as bathrooms and changing rooms, and ensure that all individuals have a suitable space that they feel comfortable in when needing to use those facilities.'
In September 2024 the Cabinet Office published data showing an increase in trans discrimination at work.
The figures showed 21% of transgender and non-binary officials said they were discriminated against at work in 2023, compared to 18% in 2022.
At large, recorded hate crimes against transgender people in England and Wales rose 11% to 4,732 offences in the last year, according to Home Office figures.
Mr Pepper warned employers they may now need to consider extra training to ensure that no new claims are brought under the Equality Act.
He said: 'Some workplaces have become divided on the issue, which means communication, training and zero tolerance on bullying will be vital to ensure that transgender employees do not feel uncomfortable at work.'
The ruling has confirmed that in the Equality Act 2010 the words 'woman' and 'sex' refer to biological sex, but also that transgender people are still protected under the Act.
During the reading of the verdict Lord Hodge stressed that the act gives transgender people protection from 'direct discrimination, indirect discrimination and harassment in substance in their acquired gender'.
Pepper argues that the act 'urgently needs to be updated to ensure that transgender individuals don't lose any of the protections they currently have from discrimination and prevent potential inequality'.
There may yet be a further appeal to come from some who believe the Supreme Court ruling may contradict another law. The Gender Recognition Act was passed in 2004 and allows adults in the UK who have gender dysphoria to change their legal sex, via a gender recognition certificate. Since it was passed, 8,464 people in the UK have done so.
But trans activists believe the Supreme Court ruling could contradict the 2004 act, which was passed after the UK lost in Goodwin & I v United Kingdom at the European Convention on Human Rights (ECHR), and thereby required the UK to comply with European law.
'Some lawyers who have contacted me believe that this could effectively overturn the Gender Recognition Act,' said fae. 'This could impact both trans women and trans men.
'If the judges say that the GRC does not matter, what is the point of it? This opens up a lot of further legal issues,' added fae.
There is no higher court than the Supreme Court in the UK, so any additional appeals will have to be heard at the European Court of Human Rights.
Jolyon Maugham, founder of The Good Law Project, a non-profit organisation that campaigns on a range human rights issues said this was already being looked at. 'I don't know if there is a case to be brought before the European Court of Human Rights - but we have already asked the question of a KC," he said. 'And, yes, if there is a decent case for a trans person to bring, we will help them bring it.'
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Partisan gerrymandering suits claim that a map was drawn to maximize one major political party's power at the expense of the other. Racial gerrymandering suits, meanwhile, allege that a state's legislative maps improperly dilute the voting power of voters of a particular race. Prior to Rucho, the Court imposed minimal — but not entirely nonexistent — limits on partisan gerrymandering. It has historically been more aggressive in policing racial gerrymanders. The Supreme Court held in Davis v. Bandemer (1986) that federal courts may hear claims alleging that a state's maps are so egregiously partisan that they amount to unconstitutional discrimination. The idea is that maps that intentionally inflate Democratic voters' power, while minimizing Republican voters' power (or vice-versa) violate the Constitution's guarantee that all voters should have an equal say in elections. 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Gingles (1986), which laid out the rules governing when an alleged racial gerrymander violates the Voting Rights Act (which broadly prohibits race discrimination in elections). The framework laid out in Gingles is notoriously complicated, but it turns on whether voters in a particular state vote in racially cohesive blocs. Thus, for example, in a state where the white majority supports Republicans nearly all of the time, while the Black minority supports Democrats nearly all of the time, Gingles sometimes requires courts to redraw the state's maps to ensure that the Black minority is adequately represented. This is because, in such a state, the white majority can wield its near-unanimous support for Republicans to cut Black voters (and Democrats) out of power altogether. In a different state, where both Black and white voters sometimes vote for either party, Gingles tells courts to stay out of redistricting. Black voters, after all, are United States citizens who have as much of a right to choose their leaders as anyone else. So, if they choose to be represented by a white Republican in a free and fair election, that's their choice and the courts should honor it. Because Gingles only kicks in when an electorate's racial demographics closely match its partisan voting patterns, it places some practical limits on both partisan and racial gerrymandering. In Milligan, for example, Alabama was not able to draw maps that maximized Republican voting power because doing so required the state to dilute Black voting power. So, even though Rucho prevents lawsuits that challenge partisan gerrymandering directly, Gingles sometimes allows suits which target it indirectly by alleging that a partisan gerrymander is also an impermissible racial gerrymander. But now the Court is signaling that it is likely to overrule Gingles and abolish suits alleging that racial gerrymanders violate the Voting Rights Act altogether. So what's the deal with the Court's new order in Callais? The Callais case is virtually identical to Milligan — indeed, the cases are so similar that Louisiana said in a brief to the justices that Callais 'presents the same question' as the Alabama redistricting case. Before the Callais case reached the justices, a lower court determined that Louisiana's congressional maps violate Gingles, and ordered the state to draw an additional Black-majority district. Nevertheless, when the Supreme Court heard oral arguments in Callais last March, all six of the Republican justices appeared to disagree with this lower court's decision — although the lower court's decision merely applied the same legal rules that the Supreme Court applied two years earlier in Milligan. Then, at the end of June, the Court issued a brief order announcing that it would hold an unusual second oral argument in Callais, and that it would seek additional briefing from the parties in this case. On Friday, the Court issued a new order laying out what these parties should address in those briefs. Those briefs should examine whether the lower court order requiring Louisiana to draw an additional Black-majority district 'violates the Fourteenth or Fifteenth Amendments to the U.S. Constitution.' The justices, in other words, want briefing on whether Gingles — and the Voting Rights Act's safeguards against racial gerrymandering more broadly — are unconstitutional. This suggestion that the Voting Rights Act may be unconstitutional — or, at least, that it violates the Republican justices' vision of the Constitution — should not surprise anyone who has followed the Court's voting rights cases. In Shelby County v. Holder (2013), the Republican justices neutralized a different provision of the Voting Rights Act, which required states with a history of racist election practices to 'preclear' new election laws with federal officials before they take effect. The Court's Republican majority labeled this provision 'strong medicine' that could be justified to combat the kind of widespread racial voting discrimination that existed during Jim Crow. But they argued that the United States was not racist enough in 2013 to justify letting preclearance remain in place. 'There is no denying,' Roberts wrote for the Court in Shelby County, 'that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.' Although Kavanaugh joined nearly all of the majority opinion in Milligan, he also wrote a separate opinion indicating that he wanted to extend Shelby County to gerrymandering cases in a future ruling. 'Even if Congress in 1982 could constitutionally authorize race-based redistricting under [the Voting Rights Act] for some period of time,' Kavanaugh wrote, 'the authority to conduct race-based redistricting cannot extend indefinitely into the future.' Gingles also suggests that Voting Rights Act suits challenging racial gerrymanders should eventually cease to exist. If the electorate ceases to be racially polarized — something that appears to be slowly happening — then Gingles plaintiffs will no longer be able to win cases, and the federal judiciary's role in redistricting will diminish. But Kavanaugh seems to be impatient to end these suits while many states remain racially polarized. Read in the context of Kavanaugh's Milligan opinion, in other words, the new Callais order suggests that a majority of the justices have decided the Voting Rights Act's safeguards against racial gerrymandering have reached their expiration date, and they are looking for arguments to justify striking them down. It now looks like Milligan was Gingles's last gasp. The Republican justices remain hostile both to the Voting Rights Act and toward gerrymandering suits more broadly. And they appear very likely to use Callais to remove one of the few remaining safeguards against gerrymanders.
