Everything you need to know about the trans Supreme Court case

What it said, what it didn't, and what happens next.

Photo by Kyle on Unsplash

Two weeks ago, the Supreme Court ruled on the case of For Women Scotland v The Scottish Ministers.

The next day, the Daily Telegraph ran with the frontpage headline: "Trans women are not women." Later that morning, the chair of the Equality and Human Rights Commission (EHRC), Baroness Kishwer Falkner, appeared on the Today programme and said that trans women should not be using women's toilets. "The steer from the Supreme Court," she insisted, "is quite clear in that regard." She then promised a new statutory code of practice.

The following Tuesday, education secretary Bridget Phillipson was asked whether a trans woman should use a women's toilet or a men's toilet. "That should be on the basis of biological sex," she replied. "That would apply right across the board to all single-sex provision." That afternoon, the prime minister's spokesman was asked if the prime minister still believed a transgender woman was a woman. "No," they said. "The Supreme Court judgement has made clear that when looking at the Equality Act, a woman is a biological woman."

Late last Friday, the EHRC released an update on their website. It stated that "trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities". Over the weekend, Cabinet Office minister Pat McFadden said trans people were banned from the toilet they identified with. "That is the logical consequence of the court ruling and the EHRC guidance."

Nearly every one of these statements is baseless or wrong. Those that are not are misleading by implication. They promote a legal reality which simply does not exist.

Over the last two weeks, we have witnessed the single most aggressive attack on a minority since Section 28. It has been full-spectrum. It has come from the press, the regulator and the government. It has seen ministers issuing statements which until recently were considered the preserve of only the most extreme anti-trans activists.

The intended result of this pressure is to erase trans people from society. People on both sides of the debate rightly scoff at the prominence given to toilets, but in fact it is precisely this element which has the most impact. If someone cannot safely go to the loo - or cannot do so without betraying some core part of their identity - they are effectively unable to leave their home. They cannot work. They cannot socialise. They cannot participate in political meetings. They cannot attend church. They cannot go to court. They have effectively ceased to exist in public space.

What we are experiencing is a one-two punch which is presented as a single solitary blow. Most of the media coverage acts as if all these interventions follow logically from the legal ruling. But that is not correct. These are not actually statements of the law. They are political instructions, with a political motive and a political aim. They have been combined with the legal ruling to give a sense of inevitability that they do not in fact possess.

This piece will explain the court ruling in full. It's long. You should get a cup of coffee and a comfy chair. But by the end of it, you will understand exactly what happened in that courtroom, what we can rightly conclude from it and what we cannot. You will understand what is legal reality and what is a political attack. And you will have a sense of what will happen next.

Politicians and journalists have been keen to tell us that the Supreme Court case is the end of the matter. It is not. It is the beginning.

The first thing to understand about the Supreme Court ruling is that it does not define what a woman is. The role of the court was to decide on the use of the word "woman" in the Equality Act 2010. That's it. Just that one piece of legislation. The ruling does not have direct application for legislation outside of that Act and it most certainly does not have relevance to our broader social conversation.

As the judges themselves said: "It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word 'woman' other than when it is used in the provisions of the Equality Act 2010." This is paragraph two of the judgement. Evidently the Telegraph headline writers didn't read this far.

The case concerned the relationship between the Gender Recognition Act 2004 and the Equality Act 2010.

The Gender Recognition Act allows people to change their sex in law by securing a gender recognition certificate. At the time, it was useful for pensions and issues around marriage. It's not really useful now and young trans people in particular aren't fussed by it. Only 8,464 people have ever claimed a certificate in the two decades since the Act was passed.

The core element of the Gender Recognition Act is Section 9. Section 9(1) says:

"Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender."

In other words, if a biological man chooses to become a woman, the certificate constitutes the legal aspect of that change.

The key phrase is "for all purposes". This is a really wide and forceful provision. But section 9(3) caveats it. It says that it is "subject to provision made by this Act or any other enactment or any subordinate legislation".

In other words, if something in the Gender Recognition Act says there's an exception, then the legal sex-changing mechanism is neutralised. If something in another piece of legislation says there's an exception, then the legal sex-changing mechanism is neutralised. The whole court case hinges on this section. We'll call it the 9(3) Exemption Trigger. You pull it, and the legal impact of the gender recognition certificate is neutralised.

The Gender Recognition Act pulls that trigger several times. It authorises the kinds of exemptions you'd expect from Britain: succession, the descent of peerage, the administration of trusts and the disposition of property. Mad feudal shit, basically. If you wish to gaze into the constitutional abyss, I would recommend that you read Hansard for the debate at report stage in the Lords. It begins with the immortal line: "It is slightly badly drafted and it would be better if it said 'and each possessing genitalia'". It goes on from there in a similarly deranged fashion, like a mixture of Yes Minister and Caligula.

With a touch more relevance to our modern debate, the Act also had a specific exception for those participating in sport where "the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender".

The Supreme Court case is about the meaning of the Equality Act, which was passed a few years later. It consolidates all the previous equality legislation - like the Sex Discrimination Act 1975 and the Race Relations Act 1976 - into one massive piece of legislation. It sets up a variety of protected characteristics: qualities humans have that are protected against discrimination, like sex, race, disability, religion and so on. And then it sets out when a person can sue for discrimination in respect of a protected characteristic.

Just like the Gender Recognition Act, there are a variety of exemptions in the Equality Act. This is when you can discriminate in respect of a protected characteristic and not get sued. Women-only changing rooms, for instance, exist because of these exemptions. The Act lays out the basis on which you can validly discriminate. The most pertinent section is paragraph 26 of Schedule 3. The basic rule is this: You can have a single sex or separate sex space if it's a "proportionate means of achieving a legitimate aim".

You should remember that sentence, because it will define many of the arguments in the years to come.

The question the Supreme Court looked at was ultimately quite simple: Does the Equality Act pull the 9(3) Exemption Trigger in the Gender Recognition Act? If it does, the gender recognition certificate is neutralised and a trans woman is still a man under the Equality Act. If it does not, a trans woman is a woman under the Equality Act.

The judges proceeded step-by-step.

First, they rejected the idea that a law must explicitly state that it is pulling the 9(3) Exemption Trigger. "The carve out in section 9(3) is not limited to express statutory provision," they concluded. "We therefore reject the submissions… that only express wording or necessary implication applying that stringent test can disapply the rule in section 9(1)." Instead, they would decide if the trigger had been pulled. On what basis? First, where the "terms, context and purpose" suggest an exemption. Second, where there is "a clear incompatibility". And third, where an Act's "provisions are rendered incoherent or unworkable".

Next they rejected the argument that the term 'woman' could have variable meanings in a single piece of legislation. "It would offend against the principle of legal certainty and the need for a meaning which is constant and predictable," they found, "especially in the context of an Act with the purposes we have identified, and which has such practical everyday consequences for so many individuals and organisations in society." In other words, managers of leisure centres need to know how the law works. Restaurant owners need to know how the law works. They can end up in court if it goes wrong. You can't tell them that really basic terms in a piece of legislation are shifting about depending on context.

Then the judges got down to business: trying to work out what the legislation meant when it said 'man' or 'woman'. Was it certified sex - the kind you can secure with a gender recognition certificate? Or biological sex - the kind you're born with?

The core elements which pushed them towards biology were the repeated references to biological qualities in the legislation, particularly on pregnancy.

Section 17 of the Act, for instance, refers to someone being treated "unfavourably because she has given birth" or "because she is breast-feeding". The judges concluded: "These plain, unambiguous words can only be interpreted coherently as references to biological sex, biological females and biological males."

They also argued that a certificated definition of sex would make policy incoherent. As an example, they raised cervical cancer screening. This uses the exemptions in the Equality Act allowing for sex discrimination - in particular a condition that "only persons of that sex have need of the service". But a trans man with a gender recognition certificate would have the same need for cervical cancer screening service that is otherwise reserved for women. A trans woman with a gender recognition certificate would not. This hopelessly complicates the law, the judges argued, making it unintelligible.

None of this was helped by the fact that gender recognition certificates are a fairly obscure administrative innovation. They do not require any physiological change or indeed any change in outward appearance at all. The certificate itself is confidential to the person who has it. People with a duty under the Equality Act do not have the right to ask to see it or even to know if it has been obtained. There is therefore no way to distinguish between someone who has a certificate and someone who doesn't.

On that basis, the Supreme Court concluded that the Equality Act did in fact pull the 9(3) Exemption Trigger of the Gender Recognition Act. It ruled that the use of the words 'man', 'women', and 'sex' were so clearly to do with biological sex that no other meaning could have been intended.

The trigger was pulled. The certificate was neutralised. A trans person with the certificate was now legally to be considered by their birth sex for the purposes of the Equality Act.

Technically, this ruling has limited implications. After all, it only refers to people with a gender recognition certificate, who are statistically negligible. But in fact it goes further than this, in subtle but important ways.

Until two weeks ago, formal trans access to single-sex spaces was based on the mercurial status of the gender recognition certificates. They were presumed to change someone's sex in law and you couldn't ask whether someone had one. This created a helpful veneer of uncertainty. Legally, everything operated in a world of fog. Furthermore, most people didn't care. Outside of a few prominent gender-critical voices in the media, there was no great groundswell of complaints by cis women in hospital wards or in toilets.

We had combined a legal muddle with politeness and tolerance, creating a classic kind of British fudge. But the ruling changed all that. It made what was benign and ambiguous extremely clear-cut. It took an impressionist watercolour painting and started carving out sharp legal distinctions.

Nevertheless, it's important not to exaggerate the repercussions. As the judges themselves pointed out, Section 9(1) of the Gender Recognition Act - and that powerful "for all purposes" provision - remains live in all other circumstances, for all other bits of legislation.

This really cannot be stressed strongly enough. The judges themselves could not have been more vociferous in pointing it out. "[The certificate's] recognition of their changed status has practical effects for individual rights and freedoms," they said, "but also in recognising their personal autonomy and dignity and avoiding unacceptable discordance in their sense of identity as a transgender person living in an acquired gender."

It is therefore irritating in the extreme to hear the prime minister's spokesperson that "when looking at the Equality Act, a woman is a biological woman". Well OK, fine. But what if we ask about the Gender Recognition Act? In that Act, a transgender woman is a woman. Indeed, what about every other Act of parliament which does not have a confirmed 9(3) Exemption Trigger? A transgender woman is still a woman.

The next time the prime minister's spokesperson issues this statement, they should be asked what his view of a woman is in the context of the Gender Recognition Act 2004. If he denies that a trans woman is a woman in that scenario, he is at odds with the law.

There will now be a series of legal challenges to this decision. Some of them will likely focus on individual cases. Some will focus on the upcoming EHRC guidance. They are likely to come in two specific forms: one set based on the Equality Act and another set on human rights law.

This is where the key test comes in. As we saw earlier, the Equality Act has exemptions from discrimination law if you can show that it is a proportionate means of achieving a legitimate end.

As a matter of law, all trans women are now legally men and all trans men are legally women in respect of matters governed by the Equality Act. The debate therefore becomes about whether an establishment is behaving proportionately and legitimately when it excludes the other sex from a space.

You'd have been forgiven, given the excitable response of ministers and the EHRC, for thinking that this test had somehow changed as a result of the Supreme Court case. It has not. If you want to exclude men, including trans women, from a space, you need to show that it is proportionate and legitimate.

At various points in the judgement, the Supreme Court explored the kinds of situations in which you might validly maintain a female single sex space and ban trans women from it. They're mostly raising these examples for different purposes, but by virtue of doing so they inform the direction of future court rulings. The list of places the judges envisage trans people being excluded from is extensive. It'll make depressing reading for many trans people and their allies. But it is nowhere near as comprehensive as you would assume or as the coverage has made out.

The judges mention "changing rooms, homeless hostels, segregated swimming areas… or medical or counselling services provided only to women (or men) – for example cervical cancer screening for women or prostate cancer screening for men". Later on they mention "rape or domestic violence counselling, domestic violence refuges, rape crisis centres, female-only hospital wards and changing rooms". These kinds of cases, the judges evidently believe, probably constitute proportionate means for a legitimate end.

However, there are other areas where the judges concede that trans women could have access without disturbing the rights of biological women in the space. At one point, when making an entirely unrelated point about changing rooms, they say: "Such trans women may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and dignity of the other women users". This is a specific acknowledgement that trans people can use the facilities of their adopted sex while preserving the "privacy and dignity" of others.

Importantly, the judges go out of their way to insist that the ruling does not impinge on the rights of trans people. They state that it "does not cause disadvantage to trans people, with or without a gender recognition certificate". I'm not sure quite how they have managed to convince themselves of this. I suspect it is a matter of definition rather than lived reality. But regardless: These words are a message to future judges when they are deciding on these matters. It is clear from the repeated statements of the Supreme Court that this ruling is not supposed to mark a fundamental alteration of trans rights.

At no point in any of those descriptions did the judges mention toilets. Indeed, there is not a single mention of toilets in the ruling whatsoever, which makes it doubly confusing why the EHRC would be putting out guidance with that front and centre, or why ministers would see fit to walk into a radio studio and start talking about it with such empty confidence.

In actual fact, a ban on toilets would be very unlikely to survive a legal challenge on whether it is proportionate and legitimate. The reason for that is simple. It is because of cubicles.

Unlike an open changing room in a gym, say, female toilets are composed entirely of individual loos with locked doors and walls around them. Given that they already have privacy built in, it will actually be very difficult to justify a ban on trans women.

Other elements will also be pertinent in these future legal challenges. For instance: are there sometimes men in the women's area? You will often see boyfriends and husbands in a department store changing room, for instance. There are often male assistants there too. If men are generally in and out of a space, it will be harder to claim in court that they are strictly women-only.

The proportionality of a single-sex space will also be judged on the impact that a ban would have on a trans person. The EHRC is insisting that a trans woman repeatedly outs herself as a biological male every time she wants to use a single sex toilet. Given that workplaces must have single sex toilets, this would, in many cases, form a precondition of her professional life.

When she is outside in public, she would similarly be forced to walk into a men's toilet and face all the questions and dangers of that decision. Will the men in the loo shout at her? Will they mock her, laugh at her, come on to her? Will she be safe? Will she be respected? Does this, in the words of the Supreme Court judges, allow her "personal autonomy and dignity"? Does it prevent "unacceptable discordance in [her] sense of identity". The answer is plainly no.

The situation for trans men is even worse, not that anyone ever bothers to mention them or acknowledge their existence. Many trans men present as extremely male. If they are forced to just walk into a female toilet, that may be highly disarming for many of the women inside. What will the EHRC suggest then? That trans men are barred from men's toilets and women's toilets? Actually yes, that seems to be exactly what they're thinking. "In some circumstances," their recent update states "the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities".

This amounts to a complete rejection of trans people from public and social life, on any practical basis. They would lose the ability to work, to socialise and to access services. Would that be considered a 'proportionate' measure so that toilets are single sex? It seems very unlikely that a court would come to that conclusion.

It almost goes without saying that these kinds of measures are also likely to fall foul of human rights law. In the UK, that means that a challenge would be taken up on the Human Rights Act, probably on the basis of a right to privacy. You can get a good sense of the kind of arguments which would be made here. If it was rejected by a court in this country, it would escalate right up to the European Court of Human Rights in Strasbourg. That court has a long history of coming down on the side of trans people. The good money would be on the same happening here.

The honest truth about this situation is that it should not be decided in the courts. It should be decided by politicians. The fact that it has not been indicates a lack of courage in the political class.

It was obvious for a long time that the Gender Recognition Act and the Equality Act did not play nicely together. For a few years now, it's been clear that their benign ambiguity was no longer tenable. Trying to reconcile the two camps was always going to be a thankless task. But that is what politicians are for. They are tasked with grasping precisely these kinds of nettles.

They did not do so, because it scared them. And now that the Supreme Court has reached its verdict, Keir Starmer wants to pretend that it is still nothing to do with him.

He has concluded that the trans debate can only damage him, because it constitutes a division on the left. It's very obvious that he simply wants it to go away. In the current climate, with all the momentum on the gender critical side, he intends to do this by complete capitulation to that wing of the dispute.

That is a failure of political leadership. A brave political leader would demonstrate to the public how someone should debate these matters: calmly, rationally, with goodwill, and thoughtfulness, and empathy. Yes, it would involve difficult choices. But it would prove that reason and compassion can solve issues which tribalism can only worsen. This is a core mission of liberal government, one that Starmer believes in and which he is currently betraying.

But even putting aside the more principled objections to Starmer's position, it is also a strategic misjudgement. This issue is simply not going to go away, no matter how much some people might wish it to do so. And if there is a human rights challenge, which there almost certainly will be, the consequences are potentially apocalyptic.

A Strasbourg ruling against a UK Supreme Court decision on trans rights would be politically dangerous. It is as if someone combined the most toxic debates into one poisonous brew: trans rights and the European Convention of Human Rights. If the court, as is likely, found in favour of trans rights, the clamour from the Conservatives, Reform, and the right-wing press to leave the Convention would be deafening.

If it succeeded, our departure from the Convention would unravel the Good Friday Agreement and blow open the Northern Ireland peace process. It would throw Britain into European isolation once again just as we were starting to return. It would be like a new Brexit.

Trans issues seem distinct from Europe and Northern Ireland. They are not. They are connected.

This scenario can be prevented, if the government addresses the issue now, firmly, before it can escalate further.

It could do this by amending the Equality Act to make it clear that references to men and women include trans men and women with a gender recognition certificate. It would cause a lot of noise, but less noise than a Strasbourg ruling.

Alternatively - and, if we're honest, more realistically - the government can address the issue through the EHRC guidance, which goes out for consultation next month and then gets sent to ministers for approval over the summer. Those ministers need to ensure that it keeps to what the judgement says and not what the EHRC says the judgement says. Government lawyers can block overreach and state clearly that anything which looks remotely like their update last Friday would be well outside the scope of the judgement.

In all likelihood, that guidance is the next battleground. It provides one last chance for the government to step in and grasp the nettle, to establish a more measured and humane status quo and prevent themselves from facing a much worse crisis in future.

What's required is political courage, moral decency and strategic foresight. We better hope there's still some of that left in this government or it won't only be trans people facing the culture war.