The NHS will be pursued if it does not follow new guidance on gender and single-sex spaces, the equalities watchdog has warned in the wake of the Supreme Court’s landmark ruling that transgender women are not legally women.
The judgment, which stated that the definition of a woman in equality law is based on biological sex, means trans women with a gender recognition certificate (GRC) can be excluded from single-sex spaces if doing so is deemed “proportionate”.
Current NHS guidance means trans people are accommodated on wards and other areas according to their presentation – the way they dress, and the name and pronouns they use. But Wednesday’s ruling now means NHS wards must accommodate patients based on their biological sex.
The Equality and Human Rights Commission (EHRC) said it was “working at pace” to provide an updated code of conduct for services, including the NHS and prisons. And now its chair has confirmed that the watchdog will pursue the NHS if it does not change its guidance.
Kishwer Falkner told BBC Radio 4’s Today programme on Thursday morning: “[The NHS] have to change it. They now have clarity. There is no confusion as of yesterday, at 10.30 in the morning, and they can start to implement the new legal reasoning and produce their exceptions forthwith, but they have to change it. We will be having conversations with them to update that guidance.”
Asked if the EHRC would pursue the case if this doesn’t happen, Baroness Falkner replied: “Yes, we will.”
Officials have confirmed that the NHS is looking to update its official guidance on same-sex wards to reflect the ruling. But no further information has been given on where trans women will be accommodated if they can no longer use single-sex wards.
Baroness Falkner also said the “efficacy” of the gender recognition certificate (GRC) – a UK legal document that recognises an individual’s gender identity, allowing them to legally change their sex – will be re-examined after the ruling.
She said the “next stage of litigation may well be tests as to the efficacy of the GRC, and or other areas”.
Asked about whether she thinks GRCs are now “worthless”, she replied: “We don’t believe they are. We think they’re quite important. But I think there will be other areas: I mean, the government is thinking of digital IDs, and if digital IDs come in, then what documentation will provide the identity of that person?
“So it’s going to be a space that we’ll have to watch very carefully as we go on.”
The Supreme Court’s judgment came after the campaign group For Women Scotland brought a series of challenges – including to the UK’s highest court – over the definition of “woman” in Scottish legislation that mandates 50 per cent female representation on public boards.
Gender-critical rights campaigners hailed the ruling as a victory for biological women and an important milestone in their fight to protect single-sex spaces.
But trans rights groups warned that it will “exclude trans people wholesale from participating in UK society”.
The director of trans campaign group TransActual, jane fae, said: “The entire trans community is devastated. Irrespective of the small print on this ruling, the intent seems clear: to exclude trans people wholesale from participating in UK society.”
