In response to the EHRC’s interim update on the practical implications of the UK Supreme Court judgment
At 8:14 PM on Friday 25th April, the EHRC published its interim update on the practical implications of the UK Supreme Court judgment on the definition of “woman” in the Equality Act 2010.
We have analysed this rushed and unworkable guidance and have fact-checked it against current law and legal applications.
1. Misinterpretation of the Supreme Court Judgment
Claim in Guidance:
The Supreme Court ruled that in the Equality Act 2010, ‘sex’ means biological sex, excluding transgender individuals, even those with a Gender Recognition Certificate (GRC).
Fact-Check:
The Supreme Court clarified that, for the specific context of the Gender Representation on Public Boards (Scotland) Act 2018, the term “woman” refers to biological sex. The Court did not make a blanket ruling that this interpretation applies universally across all contexts of the Equality Act 2010. Importantly, the judgment explicitly stated that it does not affect the existing protections against discrimination for transgender individuals under the Equality Act 2010. 
2. Misapplication of the Gender Recognition Act 2004
Claim in Guidance:
A trans woman is a biological man, and a trans man is a biological woman, regardless of GRC status.
Fact-Check:
The Gender Recognition Act 2004 stipulates that individuals who have been issued a GRC are legally recognised in their acquired gender “for all purposes.” This legal recognition means that a trans woman with a GRC is legally female, and a trans man with a GRC is legally male. The guidance’s assertion contradicts this legal framework.
3. Incorrect Guidance on Single-Sex Spaces
Claim in Guidance:
Trans women should not be permitted to use women’s facilities, and trans men should not be permitted to use men’s facilities, as this would render them no longer single-sex.
Fact-Check:
The Equality Act 2010 allows for the provision of single-sex services and spaces. However, excluding transgender individuals from these spaces is only permissible if it is a proportionate means of achieving a legitimate aim. This requires a case-by-case assessment, considering the rights and needs of all individuals involved. A blanket exclusion, as suggested in the guidance, does not meet this legal standard and could constitute unlawful discrimination.
4. Misrepresentation of Legal Definitions
Claim in Guidance:
A woman is a biological woman or girl (a person born female), and a man is a biological man or boy (a person born male).
Fact-Check:
While the Supreme Court used the term “biological sex” in its judgment, it did not provide a comprehensive definition of what constitutes “biological.” The use of such terminology in legal contexts is complex and can be interpreted in various ways. Moreover, the Equality Act 2010 recognizes the protected characteristic of gender reassignment, offering protections to individuals who are proposing to undergo, are undergoing, or have undergone a process to reassign their sex. 
5. Potential Breach of the Public Sector Equality Duty (PSED)
Claim in Guidance:
Employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.
Fact-Check:
While seeking legal advice is prudent, the guidance itself may lead public bodies to actions that breach the Public Sector Equality Duty under the Equality Act 2010. This duty requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between different people. Implementing blanket policies that exclude transgender individuals from facilities or services could contravene this duty. 
Conclusion
The guidance in question misinterprets the Supreme Court’s judgment and misapplies existing legislation, potentially leading to unlawful discrimination against transgender individuals. Organisations should approach such matters with careful legal consideration, ensuring compliance with both the Equality Act 2010 and the Gender Recognition Act 2004, and should avoid blanket policies that fail to consider individual circumstances and rights.