According to an EHRC Commissioner, activists who question the validity of the Supreme Court’s ruling last week on the definition of gender in the Equality Act ‘help nobody’.
In the case of for Women Scotland vs. The Scottish Ministers on 16 April, five Supreme Court Judges unanimously ruled the Equality Act 2010, which defines women and sex, as biological sex.
Many people had previously believed that, for the purpose of the act, a woman was either a woman who is biologically female or a woman who is transgender (biologically a man) and held a certificate recognizing her gender.
On Saturday, thousands marched against the ruling in Westminster, holding placards such as “Trans rights is human rights” or “Trans women are woman”.
Akua Reindorf KC wrote in The Times that while the public should take part in the debate on law reforms, it is irresponsible to question the legitimacy of a judgment based on misconceived reasons.
EHRC intervened, arguing the inclusion of trans women as a definition of woman would cause intractable problems to the rights of both women and LGB. The Supreme Court agreed in its 88-page judgement.
Reindorf stated: “Unless legislation is changed, this judgment is the last word on the question that has defined the debate: What is a woman?” According to discrimination law, a woman is someone who is born female.
She stated that while the law is complex in this field, the judgement is “a model of clarity” which provides a solid basis for addressing consequential issues.
Wishful thinking
Reindorf said that a lively critical discussion was vital for civic life and democratic engagement. “Unfortunately, this time, it’s been fueled by misunderstanding, wishful thinking, and distortion.”
She continued: “Single sex facilities in schools and workplaces are mandatory.” The court’s ruling has made it clear that, along with other laws, the Equality Act requires such facilities to be provided based on biological sex.
If a service meets the conditions of the Equality Act, it can be designated single-sex. The service will only admit people who are of the same biological sex if it is designated as such. If it does not meet the single-sex requirements, then all members of opposite sex must be admitted.
Reindorf said that it is “not arguable” that the law on indirect discrimination due to gender reassignment could be used as a way to circumvent this principle.
She also criticized the claim that employers or service providers must justify excluding transgender people from single-sex services based on their actual gender and that it must be done case-by-case. This statement has referenced the legal test of “proportionate methods of achieving legitimate goals”.
Reindorf said, “Again this is false.” “The operation of a sport or service on a biologically single-sex base must be justified in a way that shows the separation of the biological sexes as a proportionate method to achieve a legitimate goal. Trans people are not allowed to use services in accordance with their gender identity. It is not necessary to make case-by-case decision: the single-sex rule should be predictable and consistent.
She continued: “Lawyers and politicians, as well as journalists, must remember that their voices have weight.” It’s irresponsible for anyone to challenge the well-reasoned decisions of the most outstanding legal minds in the country with a lack of knowledge or laziness.
Trans voices
Reindorf dismissed the claim that trans voices were excluded from the Supreme Court ruling because the judges refused to allow two trans individuals to intervene in the case.
The Supreme Court doesn’t hear testimony about lived experiences; it examines legal arguments. The proposed intervener should demonstrate that they are able to make a unique contribution to the legal arguments and help the court in matters that go beyond their own personal interests.
She also said that trans advocacy groups did not intervene. Amnesty’s and the Scottish government’s top practitioners “made their case thoroughly” for them.
She concluded that “undermining the validity of the judgement on such misconceived ground helps nobody and is even more regrettable when viewed against the background of misinformation which has been spread about the law in relation to sex, gender and sexual orientation from ostensibly trusted sources for many years.”
The EHRC will update its guidance in this area with a revised code which, subjected to ministerial approval is expected to be presented to Parliament during the summer.
Reindorf said that employers, sports bodies, service providers and other duty bearers under the Equality Act must urgently review policies and practices using “reliable expert advice” that is not solely derived from lobby groups.
“What’s needed is a constructive dialogue on how the law can be used by everyone, based upon a shared, accurate understanding of the current law, not the law that activists would like to see.”
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