In a landmark judgement on Wednesday, the Supreme Court ruled that trans women are not legally women under the Equality Act.
Five judges 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 means that transgender women with a gender recognition certificate (GRC) can be excluded from single-sex spaces if “proportionate”. But what does this look like in practice?
Toilets and changing rooms
The ruling is likely to mean that trans women are no longer able to access women’s bathrooms or changing rooms, and trans men are no longer able to enter men’s.
Baroness Kishwer Falkner, chair of the Equality and Human Rights Commission (EHRC), said the ruling means single sex spaces “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.
However, there is concern among the queer community that this decision may leave trans people unable to access any public bathroom or changing room at all. For example, a trans woman who presents as female, is now barred from accessing women’s loos – but may find herself unwelcome or feeling unsafe in a male bathroom.
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, Baroness Falkner 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.”
Officials have confirmed the NHS is now looking at updating its official guidance on same-sex wards to reflect the ruling. The NHS’s current guidance means trans people are accommodated according to their presentation – the way they dress, and the name and pronouns they currently use. But Wednesday ruling now means NHS wards must accommodate patients based on their biological sex.
Asked about the ruling’s impact on NHS guidance, health minister Karin Smyth said the health service will make sure that “trans people are treated with privacy and dignity”.
“But the ruling is very clear that sex means biological sex, and… the NHS will obviously be complying with that as every other public body will”, she added.
The Equality and Human Rights Commission (EHRC) says it is “working at pace” to provide an updated code of conduct for services, including the NHS and prisons.
Baroness Falkner confirmed that the EHRC will pursue NHS trusts which do not follow yesterday’s judgement on single sex wards.
In theory, the Supreme Court ruling means that trans women would no longer be able to access women’s only refuges when fleeing domestic abuse. However, Refuge – a major domestic abuse charity – confirmed that the ruling will not change the way it operates.
“We remain firmly committed to supporting all survivors of domestic abuse, including trans women”, Gemma Sherrington, Refuge’s CEO said in a statement.
“Refuge offers a range of specialist services that are accessible to trans women, including our helpline, community-based support, and some accommodation-based services. These are designed to provide safety, dignity, and tailored support to meet individual needs.”
Wednesday’s judgement will be hugely consequential for sport, an industry which has been grappling with the question of whether trans women should be allowed to compete in women’s sport. Currently, individual sporting bodies are able to set their own guidance on which gender categories trans people are able to compete in.
But Baroness Falkner told the BBC’s Radio 4 programme that the ruling made it clear that people assigned male at birth can no longer take part in women’s sport.
“The ruling is enormously consequential, and it does bring clarity, that is undoubtedly the case. It’s a very readable judgment, and organisations should be taking care to read it and to understand that it does bring clarity, helps them decide what they should do”, she added.
The EHRC’s updated code of conduct for services will also apply to prisons, after yesterday’s ruling made it clear that people must be accommodated based on their biological sex.
This means that trans women are likely to be placed in male prisons, while trans men are likely to be placed in female prisons.
