The NHS must change its policy of allowing transgender people to be on single-sex wards aligned with their gender identity following the Supreme Court ruling on the definition of a “woman”, the head of Britain’s equalities watchdog said.
On Wednesday, judges at the UK’s highest court unanimously ruled that the definition of a “woman” and “sex” in the Equality Act 2010 refers to “a biological woman and biological sex”.
Baroness Kishwer Falkner, chair of the UK’s Equality and Human Rights Commission (EHRC), said the ruling was “enormously consequential” and ensured clarity.
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She vowed to pursue organisations that do not update their policies, saying they should be “taking care” to look at the “very readable judgment”.
On single-sex hospital wards, Baroness Falkner told BBC Radio 4’s Today programme the NHS will “have to change” their 2019 policy, which says transgender patients are entitled to be accommodated on single-sex wards matching how they identify.
She said the court ruling means there is now “no confusion” and the NHS “can start to implement the new legal reasoning and produce their exceptions forthwith”.
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Women’s sport and changing rooms
The baroness also said trans women can no longer take part in women’s sport, while single-sex places, such as changing rooms, “must be based on biological sex”.
However, she said there is no law against organisations providing a “third space”, such as unisex toilets, and suggested trans rights organisations “should be using their powers of advocacy to ask for those third spaces”.
In 2021, Baroness Falkner came under criticism from trans and other LGBTIQ+ organisations after she said women had the right to question transgender identity without fear of abuse, stigmatisation or loss of employment.
Some EHRC staff resigned in protest of the body’s “descent into transphobia”, while others defended her, saying she was depoliticising the organisation. Her four-year term was extended for a further 12 months in November by the Labour government.
Public bodies must look at equality laws
Health minister Karin Smyth said public bodies have been told to look at how equality laws are implemented following the ruling.
She told Anna Jones on Sky News Breakfast: “Obviously, public bodies have been asked to look at their own guidance.
“And we will do that very, very carefully.”
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She said the court’s ruling was “very clear” about women’s rights being defined by sex, which she said “will give clarity to companies”.
But she warned against public bodies making statements “that may alarm people”, telling them to take their time to look at their guidance.
The ruling marked the culmination of a long battle between campaign group For Women Scotland and the Scottish government after the group brought a case arguing sex-based protections should only apply to people born female.
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Not a triumph of one group over another
Judge Lord Hodge said the ruling should not be read as “a triumph of one or more groups in our society at the expense of another”.
He said the Equality Act 2010 “gives transgender people protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender”.
Ms Smyth said those who identify as transgender “will feel concerned” after the ruling but said the Gender Recognition Act still stands and gives people who identify differently to the sex they were born in “the dignity and privacy of presenting differently”.
She said NHS policy of having same sex wards remains, but did not mention the 2019 transgender policy, and said the NHS has been looking at how to support both transgender men and women.
Scotland’s First Minister John Swinney said the Scottish government “accepts” the judgment and said the ruling “gives clarity”.
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Trina Budge, director of For Women Scotland, said it was a “victory for women’s rights” and said the case was “never about trans rights” as transgender people are “fully protected in law”.
“It means there’s absolute clarity in law regarding what a woman is. We know for sure now that we are referring to the biological sex class of women,” she told Sky News.
“And that when we see a women-only space, it means exactly that. Just women. No men. Not even if they have a gender recognition certificate.”
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Transgender woman and Scottish Greens activist Ellie Gomersall said the ruling “represents yet another attack on the rights of trans people to live our lives in peace”.
Scottish Greens MSP Maggie Chapman added: “This is a deeply concerning ruling for human rights and a huge blow to some of the most marginalised people in our society.”
LGBT charity Stonewall said there was “deep concern” around the consequences of the ruling.
