The Supreme Court ruling and what it means for trans people and inclusion

There’s been a lot of coverage in the last couple of weeks about the recent Supreme Court ruling, delivered on the 16th April 2025, and what it means for trans women and ‘biological’ women. The ruling was meant to address a very narrow use case and was brought to court by For Women Scotland – a trans exclusionary group, supported by among others, JK Rowling. On their website, what they state that they stand for is ‘We believe that there are only two sexes, that a person’ sex is not a choice, nor can it be changed.’ In this blog, I’m going to talk about why I think that’s wrong, what’s going on with the ruling and what we can all do about it.

What was the original problem?

This bit is a bit heavy, so bear with me. But it’s important to understand just how detailed and nuanced the whole case is and how it hangs on a very specific definition in a very specific set of circumstances.

The ruling looked at the definition of sex in the Equalities Act 2010 and the guidance issued by the Scottish Government, through the Gender Recognition Reform (Scotland) Bill which changed the process to get a Gender Recognition certificate, set out in the Gender Recognition Act, 2004. The Bill determined who could apply for a Gender Recognition Certificate (a GRC) and legally recognised that a person’ gender is not the gender they were assigned at birth but is their ‘acquired gender’ which is what For Women Scotland objected to.

Essentially, the Equalities Act referred to sex as being male or female and was generally understood to refer to biological sex at both. However, it did not explicitly incorporate transgender identities within the definition of ‘woman’ or ‘man’. What it did do, was include those who had been through ‘gender reassignment’ as a separate protected characteristic. ‘Sex’ was also a protected characteristic. It did allow for ‘single sex services or spaces’ to permit the exclusion of transgender individuals if it was a ‘proportionate means of achieving a legitimate aim’ – but the proportionate piece was left open to interpretation.

This meant there was legal ambiguity over whether a transgender woman (even with a GRC) counted as a ‘woman’ in all circumstances. The Supreme Court ruling clarified that in the context of single-sex exemptions, the term ‘woman’ only applied to biological females, not those with a GRC.* This leads to a problem where trans women with a GRC are legally recognised as women in one legal ruling, and now not in another. It's very hard to reconcile!

So, what does all that actually mean?

It meant that under the Equalities Act, services providers and single sex spaces could include trans women (and trans men, but For Scotland are only interested in trans women). It also meant that they could be excluded in very specific scenarios, if it was a proportionate means of achieving a legitimate aim, and only then.

Why does it all matter?

With the ruling, a lot of confusion has been created about where trans people can now have access. If an organisation provides ‘single-sex’ spaces, allowing trans people into them now could void this status. However, remember there are very few situations where it is actually necessary to exclude trans people. Most trans people have been using the toilets and changing rooms that match their gender identity for years.

The main reason this ruling matters is because it makes trans people feel under attack and unsafe. It’s hard for me to stay neutral about this, because I have a trans son, and I’ve seen the devastating impact of this judgement on him and how he feels about his validity over the last couple of weeks, especially as some organisations have now banned trans women from women’s spaces and sports altogether.

If trans people become forced to use the toilets and changing rooms of their biological sex, then this means not just that trans women will be barred from women’s toilets – but that they should use the men’s. And the other side of the equation is that trans men would use the women’s toilets. What this actually means in practice is that trans men, whether with a GRC or not could now be forced into women’s spaces. This means trans men, who look like men – sometimes with beards, muscles and all the rest - could now be in women’s spaces. Personally, I fail to see how this makes women in those spaces feel safer. The argument that groups like For Scotland use is that trans women, who could prey on ‘biological’ women are now not allowed into women’s spaces which will improve their safety. Yet what this ruling has done is to potentially force trans men into those spaces instead. If I was a predatory man, I know which scenario makes life easier for me. (It’s worth reminding people here that trans men don’t want to be in women’s toilets – because trans men are men!)

It's not just trans people

All of this confusion and conflict has centred around biological sex and transgender people who have moved from their gender assigned at birth, to a different gender. However, it ignores non-binary people and also intersex people. Yet their difficulties are just as important, and potentially more widespread. In the last census, only around 0.5% of people in the UK identified themselves as transgender. It’s a tiny amount of people. However, around 1.7% of the global population may be classified as Intersex.

For obvious reasons – non-binary people don’t classify themselves as male or female, so it’s extremely hard to know how this legislation affects them. Intersex people are living proof that sex isn’t the binary male or female that groups like For Women Scotland argue it is. There are several different types of Intersex people – those with chromosomal variations such as Klinefelter Syndrome (who have XXY chromosomes), Turner Syndrome (XO) and other variations, all of which affects development in different ways. There are people with hormonal or gonadal variations such as Androgen Insensitivity Syndrome or Congenital Adrenal Hyperplasia. These may result in differences in genitalia. There are gonadal differences, mosaicism and chimerism. These conditions may mean that people affected have one type of chromosome and a different type of genitals, differences in appearance and the presence or absence of gonads and sex organs which might be different again from their chromosomes.

None of which is straightforward and none of which is binary. Although the debate has centred around trans people, this group of people is just as important and like trans people themselves, have been absent in any debate. (The Supreme Court did not take into account the testimony of trans people when making their ruling.) Check out https://www.facebook.com/intersexuk/about for more info about Intersex people.

What if you own a business with public spaces (or work in one) - what do you need to do?

There is some difficulty here, because despite the ruling, it’s still ambiguous. Forcing trans people to use separate facilities could breach their legal right to privacy, but this is as yet untested. Making trans people use disabled facilities creates additional barriers for disabled people and risks breaching inclusion principles.

Some great guidance, offered by Trans in the City, can be found here: https://www.transinthecity.co.uk/infographics

They make the following recommendations:

• Where possible, make toilets gender-neutral. This means with full height cubicles and hand washing behind the door, or communal sinks where allowed.

• Review your policies and see how they can be amended to uphold psychological safety, employee dignity and respect.

• Train managers and your HR teams to deal with strong feelings on both sides of the argument.

• But most importantly – back your trans staff and customers publicly. It’s not enough anymore to remain silent – if you are an ally, PLEASE speak out, be public and demonstrate your support for trans people. Make them feel welcome and included.

Trans people are under no legal obligation to tell their employer – or anyone else! - that they are trans. They may have valid gender and birth certificates and driving licences that reflect their chosen gender. Non-binary and intersex people do not fit the binary view of biology. So, let’s not make toilets a battleground. How is it even possible to enforce who pees where? Not every person looks obviously male or female – nor would they want to, so in reality this is a ruling that’s impossible to police.

On the 1st May 2025, Lord Alton of Liverpool, the Chair of the Joint Committee on Human Rights Commission, wrote to Baroness Falkner about the Supreme Court ruling.

He said: ‘As the judgment makes clear, the Supreme Court’s role does not involve making policy and its decision was limited to the question of statutory interpretation. The court emphasised that its conclusion does not remove or dimmish the important protections available under the Act for trans people.’

This means that the ruling doesn’t mean the law has changed. It is not compulsory to make any changes!

There is now due a period of review where the Equality and Human Rights Commission will produce a revised statutory code of practice, which is expected to be laid before Parliament before the summer break. Things may become clearer then, but I know many trans and non-binary people and their friends and families are worried about what this will contain as it does seem that trans rights are being rolled back all over the globe at the moment.

If you want training on how to be more trans-inclusive take a look at trans charities like TransActual, Trans in the City, and Transmission PR.

As the mother of a trans son, an LGBTQIA+ ally and as someone who just believes in fairness and equality for everyone, I have written this blog to try and help and support trans, non-binary and intersex people. I don’t pretend to be an expert and would urge you to find out more yourself about these issues. Amnesty International says: ‘Legal gender recognition, as it works now, is essential for trans people to enjoy the full spectrum of human rights each of us is entitled to, and live free from fear of discrimination.’ Read more at https://www.amnesty.org.uk/press-releases/uk-amnesty-intervenes-supreme-court-case-legal-protections-trans-people

Nothing I’ve said here is intended as legal advice. It’s just my thoughts on how we can support people – our families, friends and the wider community.

Leo and I have supported the Good Law’s campaign to challenge this ruling, and if you’d like to do the same, please check it out here: https://goodlawproject.org/crowdfunder/supreme-court-human-rights-for-trans-people/