A government minister was unable to say which changing room transgender women should use after the Supreme Court ruled they are not legally women under the Equality Act.
The judgement, handed down on Wednesday, means transgender women with a gender recognition certificate (GRC) can be excluded from single-sex spaces if deemed “proportionate”.
But asked which changing room a transgender woman should use, Labour health minister Karin Smyth could not say.
“Look, I think we need to make sure that in this discussion we are following both the law so that is clear for women and for service providers and you know…this varies upon what the provision of those service providers are. Large organisations, smaller organisations, many smaller organisations”, she told Times Radio.
Asked why it varies, Ms Smyth responded: “Because some will have unisex provisions there might only be one bathroom, one changing room in an organisation. It’s a large complex issue so that’s why people have to be very clear on that guidance.”
When it was put to her that the public is looking for clarity from the government, she said: “Female changing rooms should be used by women.”
Pushed further on where trans women should get changed, Ms Smyth said: “It’s important that a trans woman or a trans man also has dignity in their use of public spaces. The use of public spaces is also a wider issue for all sorts of people who feel they don’t have access to public spaces.”
On Wednesday, five judges from the UK Supreme Court ruled unanimously that the terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex, in a decision that could have wide-ranging ramifications for trans women’s rights to use services and spaces reserved for women.
It came after campaign group For Women Scotland (FWS) brought a series of challenges – including to the UK’s highest court – over the definition of “woman” in Scottish legislation mandating 50 per cent female representation on public boards.
Gender critical rights campaigners hailed the ruling as a victory for biological women that will protect single-sex spaces, with FWS saying they were “absolutely jubilant” about the result.
But trans rights groups have reacted with dismay, warning that it will “exclude trans people wholesale from participating in UK society”.
jane fae, director of trans campaign group TransActual, argued society will “divide more sharply into queer-friendly and queer-hostile spaces” as a result of the ruling, adding that it will “be the poorer for it”.
“The entire trans community is devastated,” the campaigner told The Independent. “Irrespective of the small print on this ruling, the intent seems clear: to exclude trans people wholesale from participating in UK society.”
Baroness Kishwer Falkner, chair of the Equality and Human Rights Commission, said the Supreme Court ruling means trans women should no longer be using women’s bathrooms or changing rooms.
“It means single sex services, like changing rooms, must be based on biological sex. If a male person is allowed to use a women only service or facility, it isn’t any longer single sex, then it becomes a mixed sex space”, she told BBC Radio 4’s Today programme.
“But I have to say, there’s no law that forces organisations to provide a single sex space, and there is no law against them providing a third space, an additional space, such as unisex toilets, for example.”
Asked how she would respond to trans people who are worried about not being able to use any public loos or changing rooms as a result of the ruling, she said: “There isn’t any law saying that you cannot use a neutral third space, and they should be using their powers of advocacy to ask for those third spaces.”
