The Supreme Court has ruled 'sex' means biological sex – the UK Government must fix it

The Supreme Court has ruled that biological sex trumps certified sex under the Equality Act. So we need to change the Equality Act.

Much has been said in the days since the landmark judgment was handed down, including accusations of bias and partiality. I won’t attempt to critique the country’s top legal minds for how they interpret the law – I will leave that to those with legal backgrounds – nor will I call into question their motives.

However, since the UK Parliament has sovereignty, what the Supreme Court has to say on the matter need not be final. It is for politicians to say what the intention of any law is, and to fix it if the letter of the law does not deliver those intentions.

All the Supreme Court ruling has done is prove how messy the Equality Act is as drafted. The row over who can use what toilet is a case in point.

The Equality and Human Rights Commission’s interim update said 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”. If the “logical consequence” of this, as Pat McFadden has said, is that trans women should be using the men’s toilets in their workplaces, that surely can’t be right.

For the vast majority of situations, allowing a person to use the facilities or services they feel most comfortable using is surely the option that makes the most sense. I do not see the need for toilets or changing rooms to be restricted to biological sex. Why should a trans man not be able to change into his exercise gear along with other men at the gym? Why should a trans woman not be able to use the ladies’ loos while out to dinner?

And even if you disagree, as I’m sure many do, there’s the practicalities too. If there is to be a ban on trans people using the toilets of their acquired gender, how should it be enforced? We aren’t in the habit of policing who enters public bathrooms and changing rooms.

If all this is the law, as the ruling and now the EHRC update seem to suggest, the law should be changed.

There are of course some circumstances where biological sex should take precedence. But these are specific, and targeted exemptions which could be legislated for. These could be put in place for rape crisis centres, women’s aid refuges, and prisons, for example.

That’s not to say a trans woman should not be able to access the support of rape crisis and women’s aid centres – she absolutely should. But it is also vital that victims of rape, sexual assault and domestic abuse feel safe in these places, regardless of their views on anything else. Services should therefore offer both single (biological) sex options and options that are trans inclusive, and this should be clearly signposted. Many organisations providing such support have already been doing this for years. It will require more funding, and the government should be willing to provide it, if they are to put survivors’ needs first.

Likewise, when it comes to prisons it is important to reflect on the extreme vulnerability of many female inmates. It therefore makes sense to come up with some solution to ensure they are not placed in any more danger by fellow prisoners.

I don’t have a clear-cut solution here, as I’m not convinced simply housing all trans women in male prisons and trans men in female prisons is the logical option, and the proportion of trans prisoners is so small it doesn’t warrant a separate estate. I would argue, though, that it should not be a blanket rule. A trans person imprisoned for fraud and who has no history of violence is surely not a risk to other inmates and so should be placed in the prison that matches their acquired gender.

The Supreme Court ruling provided clarity on one legal point, but the bigger lesson to take is legislation must be precise. If, as the judges highlight in their ruling, ‘sex’ cannot mean one thing in one part of the Equality Act and another in a different part of that same Act, parliament must address that. The judges were right to say that trans men who become pregnant should be protected against pregnancy and maternity discrimination. But equally, how could it have been the intention of lawmakers to ban those same trans men from using the toilet of their choice?

This is why the Act needs to be amended. There are clear circumstances where single-sex provisions might require the exclusion of trans people. But as a matter of practicality and allowing people to live life with dignity, there are more occasions where it doesn’t.

For all the talk of the Supreme Court providing clarity when it comes to single-sex spaces, there remains huge question marks for public services and facilities. It’s now on the UK Government to amend the Equality Act to fix it.