Keep Calm and Carry On: Taking a Measured Approach to What We Know So Far About the Supreme Court Ruling
On 16th April, the UK Supreme Court unanimously determined that under the Equality Act, the terms “woman,” “man,” and “sex” refer to biological sex. This means that even with a Gender Recognition Certificate (GRC), for the purposes of this Act, transgender women are now legally considered men, and transgender men are now considered women. The ruling affirms that single-sex services - such as women's refuges, hospital wards, and sports - can lawfully exclude trans women.
An increasing reliance on clickbait headlines and opinions presented as facts means this news has become misconstrued and twisted over the last month. What was intended as a clarification to one small, but essential, part of the law, has quickly ballooned in many places into a justification for bigotry and transphobia under the guise of legal compliance.
This has understandably caused great frustration and fear among the trans community, and caused confusion for employers about what they need to do now to remain legally compliant. So, what should your organisation do now?
1. Hold the line and don’t panic.
Because this is a new and evolving situation, don’t rush to make any kneejerk reactions. The exact implications are unclear as yet and everyone is working through to understand them and what may need to change in practice. But remember, this ruling states that any restriction based on biological sex must meet the test of being “a proportionate means of achieving a legitimate aim”.
In practice, this means that there needs to be a legitimate reason to prevent a trans person from using a single-sex space such as bathrooms and changing rooms, and an existing alternative must be readily available if so. So, resist the temptation to reactively introduce blanket policies or change existing policies under the guise of compliance.
Reaffirm inclusive policies unless you have a clear and demonstrable legal basis to do otherwise.
Engage your people, clients and customers to understand their concerns and experiences.
Remember that this ruling does not remove the Equality Act's protection for trans people under the protected characteristic of gender reassignment. Your organisation still has a legal duty to prevent harassment and discrimination against trans employees, clients and customers, including in single-sex settings.
In these single-sex settings, a key detail of the proportionate aim means that just because your organisation can now exclude trans people from single-sex spaces, you don't have to. And if you want to, you need to prove that serves a proportionate means to achieve a legitimate aim.
2. Advocate for dignity and equity
Binary trans people, non-binary people and intersex people make up a tiny percentage of the UK population according to the ONS, so authentic allyship that amplifies their voices has never been more vital. True allyship isn’t seasonal or transactional, or only for times when it’s convenient. Stand proud in your inclusive values and reaffirm your organisation’s commitment to equity and dignity for all.
These figures come with the caveat that measuring the true number of intersex people is nearly impossible, and a good proportion of people do not answer government surveys honestly, because of a fear of persecution.
3. Empower your people
Make sure all your internal and public-facing policies are up-to-date and clearly state your commitment to inclusion, safety, and dignity for all genders. Remember, legal compliance is always the bare minimum – go beyond wherever possible for holistic, authentic inclusion.
Create and maintain trusted systems for reporting discrimination, harassment, and exclusion, especially for anyone unsure whether the recent ruling has changed their rights. It hasn’t.
Demonstrate visible allyship. Highlight your support networks, publish statements of inclusion as a reiteration of your commitment, and ensure your leaders are setting a strong example of allyship. Remember, no action is still action.
For support on creating an inclusive culture for all, or for any specific support on trans inclusion, contact our expert team for a chat.
Please note that The Clear Company are not legal experts so we advise you to seek specialist legal advice should you need it.