As a migration charity, we are very vocal about attacks on other marginalised groups because migration is not a siloed issue. Since the Supreme Court ruling on the terms ‘woman’ and ‘sex’ in the Equality Act 2010, a number of queer and trans+ migrants in our Network have expressed their distress about the verdict and asked what it might mean for them. Whilst the implications are still developing, we felt it was important to summarise what’s going on.
Background to the ruling
For Women Scotland, an anti-trans campaign group, began a legal challenge against the Scottish Government in 2022 following statutory guidance that they released in relation to the Equality Act 2010, wherein they defined sex as inclusive of those who have transitioned. Part of their challenge was that the Scottish Government could not rule on this as a devolved government, which was initially denied by Scottish courts, following which For Women Scotland took the case to the Supreme Court. It is crucial to mention that the Supreme Court accepted interventions from other anti-trans groups, while not accepting any requests for intervention from trans+ people or organisations.
The case was heard by the Supreme Court in a context of moves already being made to restrict the rights of trans+ people, many of which began under the former Conservative Government and continued (and in many cases worsened) under the current Labour Government. We have already covered interim guidance regarding immigration detention from January which widen the circumstances in which trans+ people can be detained in facilities according to their gender assigned at birth, while young trans+ people have lost access to puberty blockers following the widely-criticised Cass Review, which was published last year. The previous Government also vetoed the Scottish Parliament’s move to introduce self-ID for trans+ people in 2023, in an unprecedented move since devolution was introduced.
Additionally, the Government restricted the number of countries and territories where the UK would recognise a person’s Gender Recognition Certificate (GRC) from, which coincided with Ryan Castellucci’s legal appeal to be recognised as nonbinary on their GRC, as they had legally been recognised as such by the US state of California while it was still on the list. The Court of Appeal ruled that gender is understood to be legally defined as binary under the Gender Recognition Act 2004.
Together, these moves have weakened the legal power of a Gender Recognition Certificate (GRC) as proof of a change in gender in the eyes of the law.
What does the ruling say?
Essentially, the Supreme Court ruling moved to define sex as something that is immutable and assigned at birth. The language used by the Court and mistakenly repeated in much reporting around the judgement is that sex is now defined by ‘biological sex’ – this is not strictly true. This language was likely chosen in contrast to the previously accepted legal function of a Gender Recognition Certificate (GRC), which is to change someone’s legal sex.
However, the use of ‘biological sex’ to mean ‘sex assigned at birth’ is plainly incorrect: sex is a combination of chromosomes, hormones and primary and secondary sexual characteristics. Additionally, chromosomes are more complex than a binary XX-XY, where more people will have different combinations, such as XXX and XXY, than are even aware of it themselves. It is completely incoherent to refer to someone who is transitioning as their sex assigned at birth in a meaningful way, in many cases.
It also used extremely questionable and subjective language, such as the “common sense definition of a woman”. The effect of this is to exclude trans women from “women’s spaces” and trans men from “men’s spaces”, including Equality Act protections on the basis of sex. On this point, it is important to highlight the Equality and Human Rights Commission’s (EHRC) interim guidance, which is what is being used by most buildings, companies and institutions to restrict trans+ people’s rights.
What does the EHRC’s guidance say then?
The EHRC’s interim guidance develops on the Supreme Court ruling, aiming to provide clarity for businesses and organisations on the practical effects of the ruling. The update is technically not even actual guidance, nor does it have any legal force behind it. Yet, it is being used by many organisations and national bodies, such as the FA, which governs football from grassroots to the professional game in England, to exclude trans women.
The update says that workplaces are required to provide single-sex toilets, as well as washing and changing facilities if appropriate, which must be restricted to the gender people were assigned at birth. In some cases, they say, trans people could also be denied access to these facilities, too, but that trans people should not be left without access to toilets, etc.
It also says that associations of more than 25 people can be limited to people with a protected characteristic, such as lesbian women only, which the EHRC says should not admit trans women.
It has been criticised internally after senior members of the EHRC wrote the guidance without consulting staff who have specific expertise on sex and gender matters. Some of these senior staff members have also garnered attention in the past for working with anti-trans organisations.
The EHRC currently has a consultation open for people to respond to the interim guidance, which Liberty are taking legal action over for violating their code of practice in giving insufficient time to respond, as well as the Public Sector Equality Duty (PSED), as well as the Good Law Project, who claim that following the guidance could constitute a criminal offence.
How will this affect trans migrants?
As the reality for trans+ migrants in immigration detention or asylum accommodation is already so poor, much of the guidance is unlikely to have significant effects. The interim guidance on immigration detention has already restricted the conditions in which trans+ people can be detained in facilities matching their gender, rather than the gender they were assigned at birth. For people seeking asylum, while there doesn’t appear to be current guidance around how trans+ people are placed in gendered accommodation, in practice we know that many trans+ people are forced into accommodation that does not match their gender.
In relation to asylum accommodation, this is particularly concerning as it is offered on a “no choice” basis. This means that if someone refuses to be housed in accommodation that does not align with their gender, they could be made homeless. However, people can request to be placed in a different accommodation because of so-called “vulnerabilities” as part of the Home Office’s Adults At Risk (AAR) policy. While trans+ people are not explicitly covered under this, the list of vulnerabilities provided is not exhaustive and so any moves will be subject to the discretion of accommodation providers.
For trans+ migrants on the EU Settlement Scheme, it has been possible to forgo gender markers on your eVisa if you do not have a sex marker recorded on existing documentation. Otherwise, the Home Office has the power to override someone’s documented gender markers from countries that have self-ID, which is recognised in 11 EU countries, and instead put the gender someone was assigned at birth. Non-binary people on the EUSS are required to choose either ‘male’ or ‘female’ for their gender markers. This is despite requirements for all travel documents to match. The Supreme Court ruling is unlikely to change this.
Ultimately, there is no way for immigration detention and a harmful immigration system to be trans-inclusive, but there are undoubtedly ways to expose trans+ migrants to more harassment and violence.
What can I do?
The guidance is not legally binding and will be challenged in court. However, many places are still implementing it, such as in gyms and public buildings. Notably, the Scottish Parliament was set to implement it in their buildings, but protests led them to reverse this decision. Essentially, because it is not legally binding, it is possible for you to push back on places that have implemented transphobic policies around access to gendered spaces – the Supreme Court ruling mainly means that organisations etc. can’t be sued for discrimination by excluding trans people from so-called ‘single sex’ spaces. We urge organisations supporting refugee women not to enact this guidance.
The Supreme Court ruling is also being challenged in court by the Good Law Project. It is also important to note that the Gender Recognition Act only came in in 2004 because of an ECHR decision that ruled that it was illegal for the UK to not have any provisions for trans+ people to legally change their gender, which is what a GRC now does. The recent Supreme Court ruling seems to go back on this.
If you are concerned about this ruling and want to help campaign against it, get in touch by emailing [email protected]
Resources
For trans+ people:
- Spectra – free counselling, peer mentoring, and health advocacy for trans+ people
- Switchboard – LGBT+ helpline: 0800 0119 110, open daily 10am-10pm
- Transactual – updates on legal changes and challenges and other issues affecting trans+ people
For organisations:
- Gendered Intelligence – Advice for organisations to maximise trans and non-binary inclusion in light of the Supreme Court ruling
- Good Law Project – Advice for service providers