The Supreme Court decision is a chance to reset the debate and defend women’s and trans rights together, argues Elaine Graham-Leigh

The UK Supreme Court ruling on the meaning of the words ‘woman’ and ‘man’ in the Equality Act 2010 has been greeted with jubilation by gender-critical feminists but alarm from trans-rights activists and others. Among fears that it will give impetus to a backlash against trans rights, the ruling itself has been called transphobic and Trumpian. It is certainly the case that elements of the right are looking to turn it into part of a UK version of Trump’s war on DEI, with Kemi Badenoch writing in The Telegraph for example that this calls for the re-education of ‘a multitude of woke managers.’

In this atmosphere, it’s first important to be clear about the nature of the ruling. The Supreme Court has not changed the law; it has clarified how the existing law should be interpreted. Put as simply as possible, the Gender Recognition Act (2004) set out the concept of legal sex. Trans people with a Gender Recognition Certificate (GRC) become for legal purposes part of the sex stipulated on their GRC. Thus, the legal sex ‘female’ is made up of biological women and trans women with GRCs, and ‘male’, biological men and trans men with GRCs. However, the Equality Act (2010) did not then specify whether, when it talks about sex, it means legal sex or biological sex.

This meant that there were two competing interpretations of the provisions for single-sex spaces, sex categories in sport, etc. in the Equality Act. The Act, for example, allows a women’s refuge to declare itself for women only, but does that mean those who are legally women, including trans women with a GRC, or biological women? In the heated world of debates on women’s rights and trans rights, it was often argued angrily that there was no possibility of confusion or ambiguity over this, even while these two different interpretations were being asserted. The Supreme Court has now determined that it is the latter: when the Equality Act talks about ‘men’ and ‘women’ it means biological sex, not legal sex. A women’s refuge therefore can legally declare itself to be for biological women only.

Ambiguous law is bad law. It is not in our interests for the meaning of the law to be unclear or within reach only for those with deep enough pockets for protracted legal action. It would have been more democratic for this clarification to have been achieved through parliamentary legislation, rather than leaving it for the courts. However, whether we agree or not with the law as it stands, clarification is in itself no bad thing.

Perceptions and interpretations

As to what we think of the law as it turns out it has been for the last fifteen years, it is important to recognise that the court’s ruling does not remove trans people’s protections under the Equality Act. It remains illegal for trans people to be discriminated against because of their trans status. It is also illegal for them to be discriminated against if they are biological women or are being treated as women, so a trans man who is discriminated against at work for being pregnant, or a trans woman paid less because they are being treated as a woman, would both be protected.

Asserting this matters because the experience of the culture wars over equality issues, both here and in the US, has taught us that the popular interpretation of the law is as important as what the law actually says. The perception that single-sex spaces were not protected in law did mean that it was more difficult to assert our rights to these spaces where necessary, even though this wasn’t actually what the law said. Employers in particular are adept at seeing which way the wind is blowing and adapting accordingly: just see the long list of US corporations who have abruptly abandoned their diversity programmes, even though as private companies they aren’t legally required to do so.

The danger is that if we allow proclamations that this is the end of trans rights to go unchallenged, not only will trans people be made more anxious and isolated, but the perception will start to become the reality. The respect and dignity which trans people have won over the last decades could indeed be lost, not because of what the law says about single-sex spaces, but if the consensus becomes that this ruling means that trans people don’t deserve equality. Campaigners for women’s rights to single-sex spaces have often been told that the perception that these were under threat was incorrect and that trans rights and women’s rights were not in competition. Now that the position of single-sex spaces has been clarified, we need to make that true in practice by standing together both to assert women’s rights and trans rights in the face of the potential right-wing backlash.

This is not simply a question of defending existing rights. One important fight for trans people, quietly dropped by Labour, is to make the process of getting a GRC simpler and less invasive than the current ‘dehumanising and stigmatising’ process. The clarification of how a GRC functions in existing law should make it possible to campaign to revive the proposals for simplifying the GRC procedure. This would not only be an important, real improvement in trans people’s lives, but would also be a way of signalling that we are not going to accept an interpretation of the Supreme Court ruling that has it that trans people have been defeated. Solidarity with women and trans people demands nothing less.