Now is the time to fight for both women’s and trans rights argue Elly Badcock, Rosie Legg, and Rob Horsfield

The decision taken last week by the Supreme Court on the meaning of the word ‘woman’ in the Equality Act to include only biological women has clearly been received in various ways on the left and across the UK.

The ruling could provide a basis from which we can build consensus on fighting back against sexism and transphobia. As socialists, we can make our own case beyond the confines set out by the capitalist ideology. In a society free from the dictates of profit, we would be easily capable of meeting the needs of everyone. Our job now must be to resist this narrative of scarcity, to use this ruling and its clarification as a springboard to recognise and campaign against the material consequences trans people are facing both due to deliberate misinterpretations of this law by reactionary forces and neglect by austerity.

This is especially necessary as, whatever the limitations in the Equality Act’s provisions in terms of rights for either women or trans women, given our political landscape at present it is understandable there are real fears about the direction of travel for trans people in this country after the ruling.

For a start it is clear that if the legal clarifications made by the Supreme Court are not to remain a dead letter they would require investment in public services tailored to meet the needs of trans people as well as widen access to these necessary services overall. For example, widespread public unisex cubicles would benefit everyone, as would an enhanced adult social care sector. More money for the NHS for talking therapies would mean greater care for trans men and women as well as better mental health provision for everyone. Stronger employment laws where workers had greater protection with an expanded definition of discrimination in the Equality Act would benefit all marginalised people.

These are potentially unifying demands for the entire labour movement.

This is especially necessary as none of these improvements are likely to come from this Labour government. Kier Starmer has famously vacillated on this issue depending on which way he thinks the wind of public sentiment is blowing. Feeling the need to triangulate and court potential Reform voters, and deep into its austerity drive, this government is more inclined to keep the culture war going and fail to provide the funding which would improve services for both women and trans people.

Unless we fight for such changes the interpretation the Act leaves many unanswered questions for trans people. For example, when starting a new job currently many trans people need not ‘come out’ at all, and if they do this is often only disclosed to HR (for example, when providing old paperwork with a different sex recorded). If public bodies are now mandated to provide toilets for females only (trans men included), will trans women be at risk of dismissal from work if they use these toilets? Will they be forced to come out to their colleagues if they use gender-neutral or male facilities? Similarly, domestic violence refuges will now be able to restrict access to biological women only. As the law does not mandate the creation of trans-only refuges, does this mean trans women could be placed in refuges for men – or fall through the gaps? And if so, where is these trans women’s protection from unfair treatment in law?

Whilst much of the debate has focused on the validity of the ruling itself, there has been far less examination of the EHRC’s interpretation of the law. In some cases, there has been a lack of consideration of the real-life negative impacts that the ruling will inevitably have – intended or otherwise.

The EHRC this week said it would ‘pursue’ NHS organisations that do not change their policies on single-sex wards, toilets and changing facilities. Currently, women’s facilities can be used by people who present as female and use female pronouns regardless of birth sex. The lack of NHS infrastructure and capital spending money means the creation of gender-neutral toilets alongside single-sex ones will be no easy task, and thousands of trans patients and staff who may have already faced hostility will now be left wondering how they can attend to basic biological functions whilst at work or receiving hospital treatment. This is nothing short of dehumanising.

There was also an abhorrent policy released from the British Transport Police, who stated they would conduct strip-searches by officers of the same birth gender as arrestees. Whilst BTP have presented this as a direct consequence of the clarification of the Equality Act, they are not being mandated by law and there was clearly a political choice made here. There is, again, nothing in the clarification of the Equality Act that would compel BTP to implement this policy. Indeed, BTP has left itself open to legal challenges from trans people; the Act is meant to enshrine “protection from unfair treatment” for people from protected groups, and forcing someone female-presenting to undergo invasive strip searches from male officers simply due to their assigned sex at birth is clearly not fair treatment.

It also raises questions about the reach and scope of the Equality Act; although the Act allows for the provision of single-sex spaces, it does not mandate these provisions. Theoretically, the NHS could choose to only provide gender-neutral toilets and the Equality Act as a standalone piece of legislation would not compel them to do otherwise. They would, of course, leave themselves open to legal challenges using the Equality Act to state they had not considered the needs of women as a protected group.

This is why the interpretation of the Equality Act cannot be presented in isolation as simply a ‘victory for women’. Without the appropriate bolstering of gender reassignment as a protected characteristic and greater access to GRCs, and without the rising tide of a strong anti-austerity campaign, the supreme court ruling risks becoming another internecine battleground.

Whilst there is clearly a wide range of opinions on the question of gender identity and what constitutes womanhood, these are questions that do not necessitate agreement amongst all socialists. There is, and should be, space for these questions to be explored and debated thoroughly and respectfully. But debating these real and valid questions must not derail campaigning against sexism and transphobia, especially whensome public and private institutions will be all too keen to institute transphobic policies in the name of the Equality Act, despite having no such legal compulsion to do so.

While offering a holistic analysis of the relationship between sex and gender we must be ready to challenge any assault on trans people’s rights and resist the division between biological and trans women the capitalist state is all too happy to engender.