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I strongly encourage you all to read his new book, The End of the Gay Rights Revolution: How Hubris and Overreach Threaten Gay Freedom.

Please enjoy the first part of our conversation. The second part will be made available tomorrow to paid subscribers only.

For years, activists, campaigners and EDI professionals have been making bad legal arguments about equality law. With a few dishonourable exceptions, these arguments have come from people with no formal legal training. One such person is Joanne Lockwood (she/her) FIEDP FRSA FPSA, who writes ‘from lived experience, not from the sidelines’.

Unfortunately for Lockwood, that lived experience contains no experience of legal education or legal practice. The robotic prose, faux rhetoric, and superficial analysis presented in “The Equality Act Is Not Symmetrical - And That Is Exactly What People Keep Getting Wrong” should make it obvious to most readers that this piece is misleading drivel. For the interested reader, however, this presents an opportunity to learn how to spot a bad legal argument.

Lest I be accused of an appeal to authority, I should make clear that being educated in law or experienced in legal practice is not necessary to make a good legal argument. Nor, I should hasten to add, are they sufficient inoculators against the making of bad legal arguments (looking at you, Good Law Project). While legal training can help in understanding the law or situating one’s analysis within its proper legal context, it is the specific technique of legal reasoning that does the work here.

Legal reasoning is a specific mode of reasoning which relies on bounded argument, operating within an existing legal practice that contains important rules about sources of law and valid legal authority. Thankfully, Lockwood has provided the perfect example of how to write about the law without engaging in this mode of reasoning in any recognisable form whatsoever.

Below are some tips for identifying when someone is trying to inveigle you into believing something about the law with superficially compelling rhetoric* but bad legal arguments.

[* To be fair, Lockwood’s piece doesn’t quite rise to this level. It reads like it was written by a coked-up AI.]

Citing little to no legal authority

The quickest way to identify bad legal arguments is to check whether the author has cited any legal authority to support their propositions. The hallmark of legal reasoning is the citation of relevant legal authority that supports one’s argument. In some contexts, such as an argument before a lower court or tribunal, authority is important because it limits the judge's decision-making power, requiring her to follow decisions of superior courts unless she can distinguish the case in question from the one she is deciding.

More importantly, however, legal argument is quite often about the proper interpretation or application of general law to specific facts. To proceed with a legal argument, a lawyer must identify the relevant legal rules, principles, and tests from the applicable authorities. Lockwood helpfully does none of this and therefore provides a great example of how to write at length without saying anything of legal substance.

To be fair to Lockwood, this piece does cite the Equality Act 2010, an important source of law in the context of single-sex spaces. No provisions in the Act are cited, but you know … details, details.

Similarly, the piece cites For Women Scotland v The Scottish Ministers [2025] UKSC 16 and does note that:

The Court held that the terms “sex”, “man” and “woman” in the Equality Act are to be read as biological sex. That is a significant narrowing. It has consequences.

Beyond this, though, nothing else from the judgment is mentioned. All that is said is that the decision did not do things it obviously did not do, like erase the protected characteristic of gender reassignment.

The issue, of course, is that Lockwood wants to make more concrete arguments about the law relating to single-sex spaces. To do that as a legal argument, as opposed to whatever word vomit this piece is, requires the citation of relevant provisions in relevant legislation and specific paragraphs in applicable cases.

Were Lockwood making a good legal argument, you might have expected to read about the single-sex exceptions in Schedule 3 paras. 26-28 of the Equality Act 2010. You might have expected there to be some engagement with (or even a mention of) the Workplace (Health, Safety and Welfare) Regulations 1992. You might even have been so bold as to expect engagement with case law such as For Women Scotland, Croft v Royal Mail [2003] EWCA Civ 1045, R (Good Law Project Ltd). v Equality and Human Rights Commission [2026] EWHC 279 (Admin), Hutchinson v County Durham and Darlington NHS Foundation Trust [2026] UKET 2501192/2024, or even Peggie v Fife Health Board [2025] UKET 4104864/2024. Alas, not today.

Not presenting the law accurately

Another common feature of bad legal argument is the failure to present a comprehensive and accurate description of the relevant legal rules and authorities. Unfortunately for Lockwood, to fail in this respect, you do need to cite legal authority before misrepresenting it. This is what distinguishes legal argument from argument about the law. There is a minimal requirement of precision and specification. Ah well.

For the sake of this post, however, let’s take some common examples of failures in this regard. They usually occur when a case is cited for a proposition it does not support. For example, in R (Good Law Project) v Equality and Human Rights Commission, the Good Law Project argued that Croft v Royal Mail supports the contention that when a person is in the process of undergoing gender reassignment, there comes a point where they should be entitled to use single-sex facilities in their acquired gender. That is not what the Court in Croft decided. While there were some obiter (passing) comments from Pill LJ about medical transition potentially conferring such a right, the issue to be decided in the case was about whether excluding a trans woman who had not undergone medical transition from a female-only space constituted unlawful gender reassignment discrimination. The court held that it did not.

Presenting Croft as more concerned with the legal position of a hypothetical claimant in a different case than with the facts of the case itself is a classic move in legal argument, treating obiter comments as if they were central to a relevant case. Indeed, some lawyers have even argued that the Court of Appeal held that once someone reached a certain stage of gender reassignment, they are entitled to be treated as a woman and to use female-only facilities. This is a bad legal argument. The Court of Appeal in Croft did not hold as such, and presenting obiter comments in this way is misleading.

It was no surprise that the High Court rejected these arguments from the Good Law Project, with Swift J noting at para. 50 that he ‘[did] not attach any weight to this submission’. Instead, he concluded that these obiter comments predate the GRA and had not been reflected in the other judgment of Parker LJ in Croft, and had not been taken up by any subsequent judgments. Taking all of this together, Swift J ‘[did] not consider that either Pill LJ’s reasoning or the notion that the relevant comparator for a claim of gender reassignment discrimination will change, can survive the reasoning in For Women Scotland’. (See what I did there?)

Not applying the law carefully

Related to the example above of not accurately presenting the law as decided in Croft, another feature of bad legal argument is presenting a true but incomplete statement of law as if it were authoritative for a particular case. This is often a failure of application, where there is a gap between ‘here is the rule’ and ‘therefore I win’. Careful reasoning is needed to explain not just what the rules are but how they apply to the specific facts of a given case.

A good example of this is identified by Lockwood, ironically enough. It is true that, as far as the Equality Act 2010 is concerned, trans women are men. Lockwood is correct, however, that this does not mean that trans women are indistinguishable from men in the eyes of the Equality Act. The protected characteristic of gender reassignment does exist. That means that it would be incorrect to proceed from the presumption that, because trans women are men, they can be treated just like other men without any legal issue arising. That would not be a careful or complete application of the law.

For example, requiring a trans woman to use the male facilities could amount to unlawful gender reassignment discrimination, depending on the circumstances. Because trans women have the protected characteristic of gender reassignment, there may be some situations where treating them as men could put them at a particular disadvantage compared to men without the characteristic. That would then need to be objectively justified.

This is why the Equality and Human Rights Commission noted in its interim update that service providers and employers should, where possible, provide suitable alternative sanitary, changing, or showering facilities for transgender people to use, or provide single-user facilities. Where doing so would impose minimal cost on an employer or service provider, failure to make suitable provision will not be objectively justified and will amount to unlawful gender reassignment discrimination.

The issue for Lockwood, however, is that this all being true, it doesn’t mean that trans women with the characteristic of gender reassignment have an entitlement to be treated as women. That is a claim unsupported by the conclusion that there will be circumstances where trans people are entitled to additional protection that people without the protected characteristic of gender reassignment are not. That is what it means to say that the Equality Act 2010 is not symmetrical. Where sex is relevant for the operation of the Act, however, sex is the factor which must be accounted for, not gender reassignment. That was clear from the decision in For Women Scotland and the many paragraphs in the judgment concerning single-sex spaces that Lockwood does not cite.

Not writing in an appropriate tone

Legal argument is not policy work. It is not political campaigning, and it is not (at least we hope it is not) presented as if written by Barack Obama’s android cousin. Good legal argument is understated. It presents the law as clearly as possible, warts and all, free from the temptation to substitute outrage or rhetoric for analysis.

If you want to see good legal argument in the context of the sex and gender debates, there is no better example than that of Ben Cooper KC in his submissions in For Women Scotland. I’d recommend anyone interested in good legal advocacy watch the Afternoon Session from 26 November 2024 at 59.10 mins. It is a masterclass.

An astute reader may notice that my own tone and rhetoric are somewhat different in this piece than in my other writing. This would make for a poor legal argument. But as an exercise in fighting fire with fire, it was enjoyable!

The Court of Appeal had today ordered the remittance of a judicial review brought by Sex Matters against the trans inclusion policies of the City of London as they relate to the operation of the women’s pond at Hampstead Heath.

In January, the High Court denied Sex Matters permission to bring the review, citing time limits and standing issues. I wrote about the initial decision at the time and will replicate some of that summary here in order to contextualise the reasoning of the Court of Appeal.

Before that, however, it is worth noting that there is an important distinction between a judicial review and other claims brought in private law. In claims brought for breach of contract or negligence etc., the claimant asserts a right to a remedy for a legal wrong done to them. In judicial review, this is not the case. Claims brought in judicial review seek to challenge the lawfulness of administrative decision-making, not to enforce a right of the claimant. The difference between these two kinds of claim give rise to important differences between the approach that courts take to their adjudication.

Importantly, the judicial review procedure is protective of the government. There are stricter time limits to bring claims and there is a more onerous requirement that the claimant has standing to sue. These are designed to ensure that public bodies can get on with the business of government without being concerned that decisions made years prior will be challenged or that public money and time will be spent responding in court to every busy-bodies who comes along, regardless of whether they are affected by the decision. These restrictions are necessary to ensure that public bodies can act effectively in the public interest, even as they are balanced against the need to ensure that administrative decision-making operates in accordance with law.

Time Limits

The first major limitation on the ability to bring a judicial review is the short window within which a challenge can be brought. The normal time limit for brining a judicial review is no later than three months from the decision being challenged. There are some circumstances where an exception can be made to this rule, but it is unusual for one to be granted years after a decision has been made. It would therefore be very rare for a court in 2025 to grant permission to challenge decision made in 2017.

In this case, Sex Matters argued that the City of London Corporation made a new decision on 16 June 2025 to maintain the current arrangements pending a public consultation. If this was a new decision that was capable of being challenged as unlawful, then there would be three months from that date to bring a challenge.

The High Court did not accept that this constituted a fresh decision which is amenable to judicial review. Instead, it concluded that the Corporation is currently in the process of coming to a fresh decision, based in part on the outcome of a public consultation. It was therefore premature to bring the judicial review at this point. Once the Corporation comes to a fresh decision, a judicial review could be brought at that stage.

In the Court of Appeal, Lady Justice Laing concluded that it is arguable that the High Court was wrong on this point, ‘not least because the Decisions were arguably the Defendant’s interim response to a relevant change in circumstances, that is, the decision in For Women Scotland’. Because this point was arguable, the case should not have been thrown out at the permission stage on that basis.

Standing

In addition to the requirement to bring a case in time, there is also a requirement that the person bringing the case have what is known as standing. To have standing in a judicial review case you must have a ‘sufficient interest’ in the decision made. Ordinarily that means that a judicial review can only be brought by someone directly affected by the decision itself. There is some scope for public interest standing, where an organisation has standing because they have a general interest in the matter. Usually public interest standing is not granted when there are people with a more direct interest in the decision who could bring a claim, unless the claimant can show that they have sufficient interest in the decision.

In this case, the Corporation argued that Sex Matters does not have standing to bring a claim because the argument advanced by Sex Matters is that the policy is unlawful on account of it being directly discriminatory. The Corporation argued that the correct venue for airing that challenge is not a judicial review in the High Court but a claim of direct discrimination in the provision of a public service brought by a user of the pond in the County Court.

The Hight Court agreed, noting that the centrality of a discrimination claim to the review sought heavily implies that the appropriate forum for resolving this dispute is a County Court with jurisdiction to hear the discrimination claim. Additionally, the appropriate claimant in a discrimination claim such as this would be someone claiming to have been discriminated against rather than a representative body such as Sex Matters.

In the Court of Appeal, Lady Justice Laing concluded that it was arguable that this aspect of the judgment was wrong because the Equality Act 2010 contains provision at s.113(3) for applications for judicial review. Given that, it was wrong for the High Court to presume that the Equality Act exclusively envisaged claims by individuals in county court for discrimination in the provision of public services. Laing LJ also concluded that there are many cases where expert charities do have standing to bring claims for judicial review, even where individual can also do so. Again, because these claims were arguable, it was wrong of the Hight Court to throw the case out at the permission stage.

It is useful to compare the different approaches to standing for charities such as Sex Matters and organisations such as the Good Law Project. In a previous case, Good Law Project v Prime Minister [2022] EWHC 298 (Admin), it was held that there is an important difference between NGO’s and charities bringing judicial reviews “in their field of interest” where they are representative of an identifiable group and organisations such as the Good Law Project. The Good Law Project is a private company registered with defined objects relating to general public law principles such as democracy, good administration, access to justice and the promotion of equality. These objects place GLP as effectively the corporate equivalent of a member of the public with an interest in public law issues. That is simply not enough to establish a sufficient interest to have standing in most public law cases.

In contrast, Sex Matters is a charity with specific charitable aims directed towards the protection of sex-based rights. It is an expert charity with a narrow focus on the particular interests of an identifiable group. Laing LJ noted that there are many authorities establishing that expert charities such as Sex Matters do have standing to bring claims for judicial review. The error that the High Court made, in my view, was in presuming that Sex Matters was in a similar situation as the Good Law Project.

Merits

Because the High Court concluded that Sex Matter did not have standing and that the case was premature, it did not consider it necessary to analyse the substantive merits of the challenge. There was therefore no finding that the policy in question was lawful and no finding that it was unlawful. The Corporation had indicated that it would seek specialist legal advice following the public consultation to ensure that its new policy would be compatible with the Supreme Court decision in For Women Scotland. Until that had been done and a decision made on a new policy, the Court did not consider it necessary to consider the matter further.

In the Court of Appeal, Laing LJ noted that the judge in the High Court ‘did not engage with the merits of the ground for justice review except at the end of her judgment’. Even here, the High Court implied only that the substantive arguments from Sex Matters were not so obvious or overwhelming as to outweigh the conclusion that the case was premature. There was no consideration of whether the arguments were themselves arguable, which is an important consideration when determining whether to grant permission to bring a case in full. In the Court of Appeal, Laing LJ noted that the arguments on the merits advanced by the City of London were ‘brief and unpersuasive’.

For these reasons, the Court of Appeal concluded that it was wrong of the High Court to thrown this case out at a preliminary stage. Laing LJ therefore ordered that the substantive judicial review should be remitted to the Administrative Court for a full hearing.

The Good Law Project has published the grounds of appeal lodged on behalf of some of the claimants in the failed judicial review of the EHRC Interim Update on the legal implications of the Supreme Court decision in For Women Scotland v The Scottish Ministers.

In summary (see a full analysis here), the Good Law Project and three other claimants challenged the lawfulness of the Interim Update on the basis that the Update contained errors of law and, if there were no errors of law, established that the Equality Act 2010 and the Workplace (Health, Safety, and Welfare) Regulations 1992 violated the rights of transgender people under the European Convention on Human Rights. The High Court rejected these arguments in their entirety, although one may be forgiven for concluding that this judgment constituted an important win for the GLP, at least if its campaigning material is anything to go by.

GLP has separately sought permission to appeal the decision that it did not have standing to take this case. Therefore, this appeal is lodged only on behalf of some of the claimants. Below, I set out the first main ground of appeal and provide some analysis. I hope to write other posts in the future which address the other grounds.

It is worth stressing at this point that the appellants are not challenging the conclusions of the High Court that permitting men to use female-only facilities could amount to sex discrimination and/or harassment against female service users. The liability risk for operating trans-inclusive facilities can be readily seen from high profile cases such as Peggie v NHS Fife and Hutchinson v NHS Darlington where women have successfully established that they have been harassed or discriminated against by trans-inclusive policies.

The Excluded Man

The first substantive ground of appeal relates to the finding of the High Court that the EHRC’s guidance contained no error of law when it stated that the inclusion of trans women (biological men) into female only facilities would mean that a service is no longer single-sex and must be open to all users of the opposite sex.

What The High Court Found

The statement from the EHRC contains two aspects; first the claim that a female-only facility would cease to be single-sex if some biological men were permitted to use them. This was dealt with quickly, with Swift J noting at [53] that ‘it is an inevitable consequence of the conclusion of the Supreme Court in For Women Scotland that in the EA 2010 “man” means a biological man and “woman” means a biological woman’. Swift J then considered the potential direct discrimination claim brought by a man excluded from a trans-inclusive women’s service:

57. The legal premise for point (vi) is that a man excluded from a trans-inclusive female lavatory (for the purposes of the EA 2010, a mixed-sex provision) would succeed on a claim of direct discrimination on grounds of sex.

58. In this scenario, not all men would be prevented from using the trans-inclusive lavatory. However, the direct discrimination claim would not fail for that reason: see and compare the judgment of Baroness Hale in R(Coll) v Secretary of State for Justice [2017] 1 WLR 2093 at paragraphs 28 – 31.

59. Whether point (vi) is correct will depend on the circumstances of the case and how, in those circumstances the matter of assessment that emerges from the judgments of the Court of Appeal in Smith v Safeway plc [1996] ICR 868 and R(Al Hijrah School) v HM Chief Inspector of Education [2018] 1 WLR 1471 is decided. The relevant matter is whether, notwithstanding that the man is differently treated, is he less favourably treated?

60. In Smith v Safeway an employer had a code on staff appearance which applied different rules for men and women. Men were required to have “… tidy hair not below shirt collar length. No unconventional hair styles …”. A man sporting a ponytail was dismissed. He made a claim of sex discrimination. The Industrial Tribunal dismissed the claim and that conclusion was upheld by the Court of Appeal. Phillips LJ stated (at page 878B – D).

“As Mr. Elias has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards? … A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an evenhanded approach between men and women and not one which is discriminatory”

Leggatt LJ agreed (see at page 881G – H)

“Discrimination consists, not in failing to treat men and women the same, but in treating those of one sex less favourably than those of the other. That is what is meant by treating them equally. If men and women were all required to wear lipstick, it would be men who would be discriminated against. Provided that an employer's rules, taken as a whole, do not result in men being treated less favourably than women, or vice versa, there is room for current conventions to operate.”

In Al-Hijrah School, a co-educational primary school segregated pupils by sex from age 9. In an inspection report, school inspectors described this as direct discrimination on grounds of sex. The school challenged that conclusion. The court concluded, by a majority, that separate but equal treatment could constitute less favourable treatment and therefore discrimination; the different treatment was detrimental both to boys and girls; and that on the facts, both boys and girls were less favourably treated. The judges in the majority (Etherton MR and Beatson LJ) considered the decision in Smith v Safeway on which the school relied. The school had submitted the case was:

“74. … clear and binding authority that different but equal treatment for reasons of sex cannot constitute unlawful discrimination unless those of one sex are treated less favourably than the other sex, and so the same is necessarily true where they are treated similarly.”

At paragraph 76, the judges concluded:

“76. We do not consider that Smith’s case is of any assistance on this appeal. As the judge pointed out … the facts of that case are very different from those of the present case. They are so different, and the social context in which they arose was so different, that [the reasoning of the court in Smith] … cannot usefully be translated by analogy to the application of section 13 of EA 2010 in conjunction with section 85(2) of EA 2010 to the facts in the present case.”

61. Whether different treatment is also less favourable treatment is, therefore, a qualitative question. In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled “women”.)

62. The Claimants put the same point in a different way contending that providing a transinclusive lavatory could be permitted positive action under section 158 of the EA 2010 and that for that reason, any claim of direct discrimination brought by a man would fail. I do not consider it necessary to consider this point separately. Insofar as it might further be said that section 158 would provide a response to the claim of indirect sex discrimination anticipated in point (iv) (the claim made by women when no single-sex provision was made), reliance on section 158 would not lead to consideration of any matter not already relevant to the justification defence to such an indirect discrimination claim.

…

77. … While I am less certain than the Interim Update that a man prevented from using the Claimants’ trans-inclusive female lavatory would be likely to establish the less favourable treatment necessary to make good a claim of direct sex discrimination, I do not consider that the way the point is put in the Update is necessarily wrong. Rather, it is a point that may turn on the facts of a situation. Even though the EHRC’s obligation when exercising its power under section 13(1)(d) of the EA 2006 is to provide an accurate statement of the law, the court must apply this requirement recognising that any statement of law will rest on some assumption of fact, even if only generic. Where a body such as the EHRC has issued guidance that rests on factual premises that are permissible, the court should hesitate before concluding that the guidance as issued was unlawful. Thus, I do not consider that the EHRC’s approach to point (vi) gives rise to any legal error.

In summary, Swift J concluded that it was an inescapable consequence of the Supreme Court decision in For Women Scotland that a facility open to both women and trans women is mixed-sex, not female-only. There is no error in law arising from that and it does not appear as though the appellants are challenging it. Instead, their arguments focus on the further point that because the service in question would no longer be single-sex, it must be open to all service users of the opposite sex.

Implicit within this is the understanding that if a service is no longer single or separate sex, it cannot rely on the Schedule 3 exceptions to defend against claims of sex discrimination. To avoid such claims, the service should not exclude a subset of men because of their (1) sex and (2) lack of transgender identity.

On that point, Swift J concluded that in order for an excluded man to have a viable claim in direct sex discrimination arising from his exclusion from a women-only service, he would need to be disadvantaged by the exclusion. Whether exclusion amounted to a disadvantage would depend on the facts of an individual case and therefore Swift J felt that a service provider could have a strong argument that the provision of ‘separate but equal’ facilities such as where communal toilets are provided for men and women separately does not constitute disadvantageous treatment of anyone. However, just because Swift J was of the view that such an argument could be run, he was not prepared to conclude that the EHRC guidance contained an error of law because any statement of law will rest on some assumptions of fact that support the general truth of the statement.

For example, the stamtent ‘the speed limit on this road is 40 km an hour; it would therefore be unlawful to drive above 40 km an hour’ presumes that one is not driving an emergency vehicle. Courts are reluctant to require those charged with issuing guidance on the law to conceive of or describe every possible scenario where general statements of law may be subject to fact specific exceptions. It would therefore be inappropriate for a court to strike down such a statement as unlawful merely because it didn’t contain the further statement ‘unless one is driving an emergence vehicle’. Similarly, it is a true statement to say that humans are bipedal, even if some people have only one leg and cannot walk. This statement is not false for failing to add in the caveat ‘except where medical conditions or injury result in the the inability to walk on two legs’. What matters when considering omissions is whether the omission is material enough to render the general statement false.

It would not have been appropriate for the court to require the EHRC guidance to caveat every statement of law with ‘unless the circumstances of the case would indicate otherwise’, not least because that would undermine the point of issuing guidance which is to provide an accessible and digestible indication of where the legal risks lie. Guidance is not bespoke legal advice intended to cover every concievable situation. Attempting to do so would result in ‘guidance’ which was unable to guide behaviour at all, leaving duty-bearers paralised. So long as the guidance contained accurate statements of law which were premised on presumptions the EHRC was entitled to make, the choice not to include repeated caveats to the effect that duty-bearers should seek bespoke legal advice on individual cases will not be an error of law. The EHRC is required to avoid mateial omissions. Swift J was satisfied that no such omission occured here.

It is important to remember two things at this point. The first is that the point of guidance from the EHRC is to provide practical information about the likely legal risks faced by duty-bearers under the Equality Act, with an eye to helping them to avoid liability. The second is that, even if an excluded man would struggle to establish a direct sex discrimination claim, that does not mean that the provision of a trans-inclusive facility is lawful. The High Court also upheld the accuracy of several points made by the EHRC in relation to the other liability risks faced by service providers, including claims of discrimination and harassment from women who are required to share single-sex facilities such as changing rooms with biological men. Even if GLP suceed on this point, that does not mean that it would be lawful to operate a single-sex toilet, changing room, or other facility on a trans-inclusive basis. I’ll set out my own views on the ‘excluded man’ issue further on in this post.

What the appeal is arguing

The appellants are aruing that Swift J erred in law by upholding the accuracy of the statement “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, as this will mean they are no longer single-sex facilities and must be open to all users of the opposite sex.” They argue that this statement contains a material omission to the effect that there may be some circumstances where single-sex facilities can include members of the opposite sex without needing to be opened to all users of the opposite sex. The appellants advance three reasons for this.

1. First, the High Court presumes that a statement expressed in absolute terms will be accurate and lawful so long as it is sometimes correct. The appellants argue that this is an error of law; if an absolute statement is incorrect some of the time, this omits material qualifiers or caveats.

Notice how this objection is framed. Swift J concluded that the EHRC guidance was expressed in general terms. The apellants argue that it was expressed in ‘absolute’ terms. This is an important difference. Swift J did not say that the guidance was only sometimes correct; he noted that the guidance contained a general statement of law which rested on general presumptions the EHRC was entitled to make. In order for the appellants challenge to succeed, it would need to be unlawful for bodies such as the EHRC to issue general statements about the law which might not hold in all conceivable circumstances.

The central issue here is not whether there may be any circumstances where an excluded man would fail in a claim of direct sex discrimination; it is whether the failure to set out the circumstances in which such a claim might fail constituted a material omission. My own view, which I will set out below, is that Schedule 3 para 26 of the Equality Act heavily implies that ‘separate but equal’ services do constitute direct sex discrimination which are unlawful except where the conditions established in para 26 are met.

However, even if they do not always do so, it would be incumbent upon the appellants to identify the material circumstances in which a direct sex discrimination claim would fail. It could then be argued that the failure to include a caveat setting out those specific circumstances was a material omission. That is quite different from insisting that the EHRC include generic caveats to the effect that its guidance is always subject to the circumstances of a given case, without indicating what circumstances would be relevant. To require nothing more than a generic statement that the guidance depends on the circumstances would create exactly the conditions for muddying the water that would undermine the purpose of the provisions permitting the EHRC to issue guidance in the first place.

Swift J held open the possibility that an excluded man may fail to establish a claim in direct sex discrimination. This conclusion must be read in conjunction with the conclusions that there will be circumstances where women would succeed in claims of sex discrimination and harassment if required to use trans-inclusive women’s facilities. If all that EHRC guidance could say were generic statemetns that sometimes it will be lawful to do X and sometimes it will be unlawful to do X, then the guidance would be useless. At a certain point guidance must be expressed in general terms which actually provides guidance on how duty-bearers should act to reduce liability. The Interim Update did exactly that. Following that update is the best way for duty-bearers to reduce liability risk.

The reality is that a choice to exclude a portion of the population from a given service runs the risk of being unlawfully discriminatory, if a substantial reason for the exclusion is a protected characteristic. The traditional means of justifying separate facilities for men and women has historically not been to point to the fact that the provision is ‘separate but equal’; it has been to point to the express carve out in Schedule 3 para 26 which renders sex separated public services lawful under certain circumstances or to point to the Workplace (Health, Safety and Welfare) Regulations 1992 which mandate certain sex separated facilities in the workplace where single-user facilities are not sufficient or have not been provided.

If a service provider is choosing to operate a separated service which cannot rely on those express statutory carve-outs, the EHRC is within its rights to issue guidance against that, given the heightened liability risk. The face that one of the multiple potential claims warned of may not succeed in all circumstances does not render that guidance unlawful.

2. Second, it was an error of law to presume that there were any circumstances where an excluded man would suceed in a claim of direct sex discrimination. This is because the exclusion of a man who does not idenitfy as a woman would be on the grounds of ‘lived gender’ not sex.

This claim focuses not on whether exclusion constitutes a detriment, but whether it could ever be said that trans-inclusive services excluded men because of their sex. This claim simply misunderstands the nature of the ‘because of’ test for direct discrimination.

Sex need not be the sole reason for the less favourable treatment, so long as it can be shown that it was an important factor in the less favourable treatment (Owen & Briggs v James [1982] IRLR 502; O’Donoghue v Redcar & Cleveland Borough Council [2001] IRLR 61); Hewage v Grampian Health Board [2012] UKSC 37).

In Nagarajan v London Regional Transport [1999] IRLR 572, the House of Lords noted:

“Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

Similarly, in O’Reilly v BBC [2011] EqLR 225, the Employment Tribunal noted at [245]-[246]:

the prescribed reason need not be the sole reason, or even the principal reason, why a person suffers detrimental treatment. Part of the reason that a woman over 40 is precluded from applying for the job, in the above example, is the fact that she is a woman. Another part of the reason is that she is over 40. Both of them are significant elements of the reason that she suffers the detriment. In such circumstances, we consider it is clear that the woman is subject to both sex and age discrimination.

The way that this can be fitted with the comparative exercise set out in the legislation is that a woman over 40 can compare her treatment to a man over 40; by which exercise the sex discrimination element of the treatment is established. Similarly, the woman over 40 can compare her treatment to another person under 40, thereby establishing the age discrimination element.

The appellants are arguing that the reason for the exclusion of a man who does not identify as transgender from a trans-inclusive female only service is not sex but ‘lived gender’. I take ‘lived gender’ to mean nothing more than self-identification, not least because the appellants have provided nothing further by way of definition. In any event, this is not the relevant question. It is not relevant if ‘lived gender’ is the purported reason for exclusion. What matters is whether the sex of the person excluded would be a substantial reason for their exclusion.

The question which must be asked to determine whether the exclusion was because of sex is whether a comparator of the opposite sex in materially the same circumstances as the claimant would be included. In this case, the relevant comparator would be a woman who does not identify as transgender or does not ‘live as a man’ (whatever that means). Would she be included in a trans-inclusive women’s facility? The answer is obvious. It is therefore inescapable that the excluded man is excluded ‘because of’ sex for the purposes of a direct sex discrimination claim. Whether that exclusion constitutes less favourable treatment is a separate question to be addressed in further detail below.

3. Third, the High Court erred by declining to consider whether operating a trans-inclusive facility could be justified as permitted positive action under s.158 of the Equality Act.

In the judgment, Swift J declined to consider this issue separately from the direct discrimination claim because he was of the view that the justification test in s.158 which permits positive action to advance the position of those who share a protected characteristic where proportionate was already addressed in the judgment when he considered the justification test for indirect discrimination. The point Swift J was making was simple: in his view many of the exceptions contemplated by the claimants would depend on the facts of individual cases; general guidance need not address the facts of every exceptional case in order to be lawful; therefore the operative question is whether the guidance contained any material omissions which would render it incorrect as a matter of law. Swift J was of the view that it did not and that the guidance was therefore legally accurate and lawful.

Schedule 3 para 26

My own view on the issue of the ‘excluded man’ is that Swift J should have addressed the implication of the existence of Schedule 3 para 26 of the Equality Act. If he had done so, he may not have been quite so reluctant to agree with the EHRC position.

Schedule 3 contains three paragraphs which each relate to the provision of separate or single sex services. Para 26 makes provision for when it will not be unlawful sex discriminaiton to provide a service separately for men and women. Para 27 makes provision for when it will not be unlawful sex discrimination to provide a single-sex service. Para 28 makes provision for when it will not be unlawful gender reassignment discrimination to provide a single-sex service.

There is an important and relevant difference between a separate sex service and a single sex service. A single sex service is a service provided only to one sex. A separate sex service is a service provided to both men and women but on a separate based. For the purposes of this case, this is the relevant provision. Schedule 3 para 26 states:

Note the structure of this exception. There are two substantive provisions, the first setting out conditions where provision of separate services for persons of each sex can be provided and the second setting out conditions where separate services can be provided ‘differently’ for persons of each sex. For the former, all that need be established is that a mixed-sex service would be less effective and that the limited provision is proportionate. For the latter, it must also be shown that providing the service differently to one sex is justified by the needs of the other sex, bearing in mind the practicalities involved.

It is clear that para. 26(1) sets out the conditions for when ‘separate but equal’ provision for the sexes will be lawful and para. 26(2) sets out the conditions for then ‘separate and different’ provision for the sexes will be lawful. The inescapable implication of the existence of para. 26(1) is that this provision is needed to render lawful something which would not otherwise be lawful under the Act.

Put another way, if a service provider sought to provide a ‘separate but equal’ service for women and men but could not establish that a mixed-sex service would be less effective or could not establish that the separate but equal service was a proportionate means of achieving a legitimate aim, it would be counterintuitive to presume that the service provider could escape liability by simply arguing that ‘separate but equal’ services are nevertheless lawful because they do not treat anyone less favourably. As Lady Hale noted in R (Coll) v Secretary of State for Justice [2017] UKSC 40:

34. This brings us, therefore, to paragraph 26 of Schedule 3 to the 2010 Act (para 24 above). The history of the United States of America and of the Republic of South Africa, to take the two most obvious examples, has taught us to treat with great suspicion the claim that, if the races are segregated, “separate but equal” facilities can be provided for both, quite apart from the affront to dignity in the assumption that the races have to be kept separate. There have been periods in our own history where segregation of the sexes has led to separate facilities which were very far from equal. Paragraph 26 recognises that there may be good reasons for providing separate facilities for men and women. As Ms Rose points out, paragraph 26 proceeds on the assumption that, without it, the provision of single sex services would be unlawful discrimination.

This must be correct. If it were not, then para.26(1) would be a dead letter; there would be no need to meet the tests set out in the provision because ‘separate but equal’ services would generally be lawful unless it could be shown that the provision was actually different between men and women, to the advantage of one over the other. However, that would also render para. 26(1) superfluous because para. 26(2) makes provision for ‘separate and different’ services.

Swift J was of the view that exclusion of a man from a women’s facility might not be direct sex discrimination if the man is provided with a separate men’s facility of equal quality because his exclusion would amount to separate but not less favourable treatment. If that were correct, however, that would render Schedule 3 para. 26(1) redundant. If the only claim that a man could bring in sex discrimination arose from the fact that he had been treated separately and less favourably (separately and differently in the language of Lady Hale in Coll at [35]), then the only circumstances in which para. 26 would be engaged would be if the conditions in para. 26(2) were engaged. This cannot be right.

The Supreme Court in Coll was correct to note that paragraph 26 proceeds on the assumption that, without it, the provision of single sex services would be unlawful discrimiantion. Without para. 26(2) the provision of separate and different facilities would be unlawful and without para. 26(1) the provision of separate but equal facilities would be unlawful.

Applying this reasoning to the case of a trans-inclusive women’s facility, it must be recognised that the provision of ‘separate but equal’ facilities can amount to discriminatory treatment. Once that is accepted, the question to be asked is whether this is a case which involves sex discrimination. In my view, that question has an obvious answer: the excluded man would be included if he were a woman. Exclusion being less favourable treatment which is because of sex, the only defence available to a service provider is that there is an applicable exception which permits this kind of discrimination. No such exception is to be found in Schedule 3 because the exceptions there pertain to single and separate sex services. A trans-inclusive women’s facility is not such a service. It is a mixed-sex service for the purposes of the Equality Act.

In my view, it is clear that the distinction between para. 26(1) and para. 26(2) intends to cover both ‘seperate but equal’ and ‘seperate and different’ services. That distinction is evidently one which presumes that for sex separation in public services, the act of separation is itself discriminatory, even if the provision is identical. To protect against direct sex discriminaiton claims arising from the provision of seperate but equal services, para. 26(1) sets out a test to engage the exception. There is then further provision made for separate and different services which, in addition to sex separation, also treat one sex less favourably than another. To protect against direct sex discrimination claims arising for the provision of separate and different services, para. 26(2) sets out a test to engage that exception.

The fact that there are two tests covering both separate but equal and separate and different services means that, in my mind, Swift J was wrong to suggest that a respondent to a sex discrimination claim brought by a man would have a strong argument that the provision was ‘different but not less favourable treatment’. Bearing in mind the wording of para. 26, read in conjunction with the Supreme Court analysis of it in Coll, I would be inclined to say that this is a weak argument at best.

This being the case, I would hope that this issue is dealt with in detail on appeal, should permission be granted. I hope to write about the other grounds of appeal in the coming weeks.

This week over 30 lawyers and legal academics wrote to Bridget Phillipson MP, Minister for Women and Equalities, to warn against the misinformation being spread by the Good Law Project in the aftermath of its failed judicial review of the Equality And Human Rights Commission’s interim update. I was among the signatories. This has been reported in the Times and I include the full text of our letter below.

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I’m looking forward to our conversations at 2:00PM. As usual, you guys have superb queries. I’m going to do my best to do you justice. Here are the top most liked questions by Knowing Ius readers:

Daff asks:

TJ asks:

Helen asks:

Kathryn asks:

Dusty asks:

This doesn’t cover even half the comments I’ve received for this Q&A. These are just the ones I’m choosing to highlight. I’m going to do my level best to respond to you all.

See you tomorrow!

Public discussion of the law relating to sex and gender identity is often polarised. Rarely do those who disagree about this topic adopt the same interpretation of the law. This is a complex area of law that often leaves significant room for reasonable disagreement. It is therefore incumbent on those of us engaged in this debate to approach it in good faith and with due academic charity. It is rarely appropriate to attack someone’s motives or their personal circumstances in lieu of substantive engagement with the points of legal disagreement.

Sometimes, however, the claims that individuals or organisations make are so radically detached from any plausible interpretation of the law that it becomes impossible not to wonder whether this is wilful disinformation.

The Facts

This week, the High Court dismissed a judicial review brought by The Good Law project against interim guidance issued by the Equality and Human Rights Commission on the law relating to single-sex spaces following the Supreme Court decision in For Women Scotland v The Scottish Ministers. I’ve written a detailed summary of the judgment, available here.

In brief summary, the High Court rejected every claim brought by The Good Law Project and upheld the lawfulness of the interim update, concluding that it contained no errors of law. The following points made in the update were all held to be accurate descriptions of the law:

Workplaces

(i) Single-sex lavatories must be provided in workplaces.

Services

(ii) So far as concerns provisions on services in EA 2010, there is no requirement to provide single-sex lavatories.

(iii) Provision of a single-sex lavatory is permitted by the EA 2010 if that is a proportionate means of achieving a legitimate aim.

(iv) Failing to provide a female single-sex lavatory could comprise indirect sex discrimination against women.

Workplaces and services

(v) Single-sex lavatories will cease to be single-sex if transsexual persons are permitted to use them other than in accordance with their biological sex.

(vi) If trans women are permitted to use a single-sex female lavatory, all biological males must be permitted to use that lavatory.

(vii) In some circumstances equality law may permit transsexual persons to be excluded from single-sex lavatories that correspond to their biological sex.

(viii) Lavatories in lockable rooms used one person at a time can be used by anyone.

(ix) If you provide single-sex lavatories do not fail to make provision for transsexual persons.

(x) If you provide single-sex lavatories (or other facilities), where possible also provide a mixed-sex facility.

The High Court made no finding that anything in the interim update was unlawful. It made no findings in relation to the EHRC Code of Practice which is awaiting a decision from Bridget Phillipson as to whether or not she wishes to lay it before Parliament. The Good Law Project failed on every ground of challenge it brought. The case was dismissed and the High Court concluded that The Good Law Project did not have standing to bring it in the first place.

The Good Law Project’s Reporting

Despite the resounding loss, those reading the Good Law Project’s reporting of the judgment may be forgiven for thinking that the High Court made findings that it did not make. That is because the Good Law Project have claimed that the High Court made findings that it did not make.

A few hours after the judgments publication, Jolyon Maugham, Executive Director of the Good Law Project sent the below letter to the Minister for Women and Equalities:

The GLP then posted on X that Phillipson is now legally required the reject the EHRCs draft Code of Practice:

Obviously, the judgment this week did not pertain to the Code of Practice. It pertained to the Interim Update that set out the EHRCs understanding of the law which then informed the Code of Practice. That interpretation of the law was upheld as legally accurate by the High Court. The High Court did not make a finding that service providers are not obliged to exclude trans women from female only services. The High Court did not make a finding that trans women may be permitted to use women’s toilets without service providers being required to allow men into those facilities. It did not make a finding that service providers can lawfully operate women only services so as to include trans women. The High Court made no findings about aspects of the Interim Update being “widely misunderstood”. Having not made any finding about aspects of the update being widely misunderstood, it did not use that as the foundation for a conclusion that the update was lawful.

Given the fact that the High Court upheld the legal accuracy of the claims made in the Interim Update and given the fact that the Code of Practice is based on that interpretation of the law, it is staggeringly unclear how the Good Law Project could claim that the Minister is now under a legal obligation to reject the Code. There is simply no foundation in the findings of the Court to support this claim.

The Spin

While there is nothing in the findings of the High Court that could justify the claims that the Good Law Project has made in this letter, a closer look at their FAQs update, published shortly after the judgment, may shed some light.

Looking at these FAQs, it is clear that the GLP has chosen to draw its conclusions about this judgment, not from the findings or conclusions of the Court, but from highly selective excerpts from the reasoning, taken out of context.

Below is a collection of examples of this happening.

In response to the question “Is it lawful for service providers to allow, for example, trans women to use women’s toilets and changing rooms (and vice versa for trans men)?” the GLP states:

An astute reader will notice that this quote from [26] doesn’t say that it will likely be lawful for service providers to allow trans people to use single sex facilities which align with their gender identity. Given the fact that GLP have stated that the High Court was clear about this point, it’s odd that no quotation to that effect is provided. That is because the judgment contains no statement to this effect.

The statement at [26] merely states that service providers may provide single sex provision or they may provide mixed sex provision depending on the circumstances.

The GLP then continue:

It is important to set out clearly the context of what the High Court was discussion in this paragraph before examining what the GLP claims this means.

This paragraph appears in the context of the Court assessing the legal accuracy of the claim in the Interim Guidance that if trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory.

The premise of this point is that a man excluded from a female-only lavatory that allowed trans women access would succeed in a claim of direct sex discrimination. Swift J concluded that a successful claim would depend on the facts of an individual case, but that

there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the ‘female’ lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled ‘women’.) [61]

It is important to be clear what Swift J did and did not say in this paragraph. This was not a conclusion about anything other than the argument that could potentially be made in response to a hypothetical claim of sex discrimination brought by a man excluded from trans inclusive ‘female’ lavatory. Nothing in this paragraph implies that such a lavatory would be lawful, even if the sex discrimination claim brought by an excluded man failed. Swift J did not say that it would fail. All he said here is that there is scope for a strong argument that a sex discrimination claim brought by a man might fail. If it did, the lawfulness of allowing trans women to access female-only facilities or services would depend on other applicable law, including the 1992 Regulations and the claims that could be brought from female service users based on sex discrimination and the Human Rights Act.

It is important also to read this paragraph in conjunction with the following paragraph at [77]

While I am less certain than the Interim Update that a man prevented from using the Claimants’ trans-inclusive female lavatory would be likely to establish the less favourable treatment necessary to make good a claim of direct sex discrimination, I do not consider that the way the point is put in the Update is necessarily wrong. Rather, it is a point that may turn on the facts of a situation. Even though the EHRC’s obligation when exercising its power under section 13(1)(d) of the EA 2006 is to provide an accurate statement of the law, the court must apply this requirement recognising that any statement of law will rest on some assumption of fact, even if only generic. Where a body such as the EHRC has issued guidance that rests on factual premises that are permissible, the court should hesitate before concluding that the guidance as issued was unlawful. Thus, I do not consider that the EHRC’s approach to point (vi) gives rise to any legal error.

The fact that there may be an argument advanced in a hypothetical case that could offer a defence to a claim of sex discrimination brought by a man was not sufficient for Swift J to conclude that the statement ‘if trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory’ was incorrect as a matter of law.

Jolyon Maugham, in his letter to Bridget Phillipson explains Swift Js finding here as arising from a finding that aspects of the Interim Update were widely misunderstood. He then claim that this enabled the Court to conclude that the update was lawful. That is simply not true. The Court made no finding that the Interim Update had been widely misunderstood. The conclusion that the update was lawful arose from Swift Js finding that the guidance did not contain any legal errors, even if the claim about a successful direct sex discrimination claim brought by a man was one lawyers could reasonably disagree about.

Give all of this, it is striking that the Good Law Project omit any reference to [77] in its FAQs and instead state the following immediately after quoting [61]:

Paragraph [61] clearly does not mean that service providers may lawfully provide women’s toilets for both women and trans women. That is simply not what paragraph [61] is about. All that can be inferred from what Swift J said in [61] is that he thought that, depending on the circumstances, there may be a strong defence available to a service provider seeking to defend a direct sex discrimination claim brought by a man excluded from a trans inclusive women’s service. That does not imply that operating such a service is lawful. Swift J made no findings to that effect.

Contrary to what the Good Law Project claim, the High Court did not explicitly state that it is permissible for service providers to label trans inclusive facilities as simply ‘men’s’ and ‘women’s’.

It is telling that, despite the Good Law Project referencing [61] to support the claim that the High Court clearly stated this, does not provide the text of the judgment where the Court supposedly clearly stated this. The relevant part of [61] reads:

However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled ‘women’.)

Swift J was not making any findings of law here. He did not state that it was legally permissible to operate trans inclusive services or that it was legally permissible to describe such services as men’s and women’s services. All thay Swift J said on this point was, in a hypothetical litigation involving a challenge to the lawfulness of a trans inclusive women’s lavatory, that lavatory would be mixed sex but in the language of the Claimants submissions, the lavatory would still be labelled ‘women’.

The Good Law Project have taken a reference in the judgment to the ways in with their own submissions used language which departed from the legal meaning in the Equality Act and have presented it as a clear statement from the High Court that it would be legally permissible to operate a women’s service on a self-identification basis and continue to label it as a women’s service. That is misleading in the extreme.

There are two explanations for this. Either Jolyon Maugham and the Good Law Project are incompetent or they are wilfully spreading misinformation about this judgment. Personally, I find it hard to believe that this is mere incompetence. Either way, the result is the same: many people who haven’t read the judgment or who wouldn’t have the skills to understand it if they did have taken their lead from Maugham and the Good Law Project and have come away with a radically ill-informed understanding of the law.

I fear I’m starting to notice a pattern…

The High Court has dismissed a judicial review brought by the Good Law Project and three individuals challenging the lawfulness and accuracy of the Interim Update issued by the Equality and Human Rights Commission in the aftermath of the Supreme Court decision in For Women Scotland v The Scottish Ministers.

Standing

This was a rolled up judgment which addressed both the issue of whether a judicial review could be brought and the substantive merits of the challenge. The High Court concluded that, while the three individuals had standing, the Good Law Project did not. To bring a challenge in judicial review, the claimant must have ‘sufficient interest’ in the decision challenged in the case. Citing a previous case where the Good Law Project was denied standing (R (Good Law Project Limited) v Prime Minister [2022] EWHC 298 (Admin)), the High Court concluded at [16] that merely having a sincere interest in the subject matter of a case is not enough to establish a sufficient interest as required by s.31(3) of the Senior Courts Act 1981.

The Guidance

Swift J summarised the guidance contained in the interim update as follows:

Workplaces

(i) Single-sex lavatories must be provided in workplaces.

Services

(ii) So far as concerns provisions on services in EA 2010, there is no requirement to provide single-sex lavatories.

(iii) Provision of a single-sex lavatory is permitted by the EA 2010 if that is a proportionate means of achieving a legitimate aim.

(iv) Failing to provide a female single-sex lavatory could comprise indirect sex discrimination against women.

Workplaces and services

(v) Single-sex lavatories will cease to be single-sex if transsexual persons are permitted to use them other than in accordance with their biological sex.

(vi) If trans women are permitted to use a single-sex female lavatory, all biological males must be permitted to use that lavatory.

(vii) In some circumstances equality law may permit transsexual persons to be excluded from single-sex lavatories that correspond to their biological sex.

(viii) Lavatories in lockable rooms used one person at a time can be used by anyone.

(ix) If you provide single-sex lavatories do not fail to make provision for transsexual persons.

(x) If you provide single-sex lavatories (or other facilities), where possible also provide a mixed-sex facility.

The Claimants argued that the guidance contained within the Interim Update misstated the law and was therefore unlawful. They then argued that this amounted to a breach of the Equality Act 2006, which sets out the powers of the EHRC. Finally, they argued that if the statements of law made in the Interim Update were correct, this gives rise to a breach of the rights of transgender people under the European Convention on Human Rights. Swift J dismissed all of these claims, concluding that nothing in the Interim Update gave rise to a legal error; that there was therefore no breach of the Equality Act 2006; and that there was no breach of the Convention.

The Accuracy of the Interim Update

It is worth going through each of the 10 points summarised above to explain how Swift J came to the conclusion that the update contained no error of law.

(i) Single-sex lavatories must be provided in workplaces

Swift J began by noting that, read on its own, this point is not a complete statement of the requirements of the 1992 Workplace Regulations. An employer can comply with the Regulations either by providing separate-sex facilities or by providing facilities in an individual lockable room to be used by one person at a time. However, this was not an error of law because the Interim Update made this exact point at (viii): ‘Lavatories in lockable rooms used by one person at a time can be used by anyone’. If point (i) is read with point (viii), the complete position under the 1992 Regulations is presented.

The Claimants argued that this guidance was wrong for two reasons. First, because the EHRC had misunderstood the obligations arising from the 1992 Regulations. Second, because reference to ‘men’ and ‘women’ in the 1992 Regulations must be read consistently with s.9(1) of the Gender Recognition Act such that they take on a certificated sex reading rather than a biological sex reading.

On the first point, the Claimants view was that the obligation to provide separate conveniences for men and women could be met “if an employer provided conveniences in separate rooms for men and women but then, for example, made it clear that any person could use either room’ [35]. Relatedly, the Claimants argued that the 1992 Regulations could be complied with if an employer provided a room for women but permitted both women and trans women to use it. Effectively, their argument was that the 1992 Regulations requires nothing more than the provision of facilities and says nothing about the manner in which those facilities should be used.

The High Court rejected these submissions, concluding that the argument ‘places form over substances, disregarding the obvious purpose of regulations 20-21 and 24’ which require separate provision of sanitary, changing, and showering facilities to be provided for men and women [36]. Swift J was clear that ‘the obvious albeit unspoken premise of regulation 20 is the provision of private space for each sex for reasons of conventional decency’ [36]. Similarly, the proviso in regulation 20(1)(c) that separate rooms containing convinces for men and women need not be provided where each convenience is in a separate lockable room clearly implies that ‘the objective of regulation 20 is that men and women should use conveniences in separate rooms, not together in the same room’ [37].

The Claimants argued that a female lavatory does not cease to be single-sex ‘if, for example, (a) it is cleaned by a man, or (b) a mother brings her young son to use the lavatory, or (c) a man used the lavatory in an emergency’ [38]. They therefore submitted that a female lavatory would similarly not cease to be single-sex if there was a policy of allowing trans women to use it. The High Court rejected this contention, concluding at [38] as follows:

Who cleans a female lavatory from time to time, is a matter entirely apart from whether that lavatory remains single-sex. The “emergency” example carries no weight precisely because it is an emergency – an event that is unplanned and driven by extreme circumstances. The example of the mother taking her young son to use the female lavatory is a bad example. That (and the corresponding practice for fathers and young daughters) is a common practice but is no more than a facet of ordinary parental responsibilities. No one could reasonably or seriously contend that when a mother takes her young son to use a single-sex female lavatory the lavatory ceases to be single-sex. Further, none of the examples above would be materially the same as the one of the employer who decided that the lavatories provided to meet the obligation under regulation 20 should be trans-inclusive. Rather, that employer has adopted a policy or practice to allow some biological males to use the female lavatory. An employer would not comply with the obligation under regulation 20 (to make sufficient provision in separate rooms containing lavatories provided for men and women, respectively) if he permitted the room for women to be used by some men and vice versa. That would go against the purpose of the regulation.

The Claimant had also argued that a biological sex reading of the 1992 Regulations would place too great a burden on employers by requiring them to ‘police’ the use of lavatories or risk prosecution for breach of the Regulations. The High Court concluded that an employer is not required to ‘police’ the use of lavatories beyond providing facilities separately for men and women and in good faith adopting and applying a policy based on biological sex. In rejecting the Claimants argument, Swift J noted that ‘the employees concerned would know what was expected of them’ and stressed that the notion that a biological sex reading of the 1992 Regulations would imply an obligation to ‘police’ the use of lavatories person by person and day by day ‘reveals the application of a “logic” so strict that it is divorced from reality and form any sensible model of human behaviour’ [40]. The enforcement of the 1992 Regulations requires the adoption of a clear policy which is communicated to employees. Any issues of breach of such a policy would be dealt with in exactly the same manner as breach of any other workplace policy.

None of this is to imply that an employer is free to require a transgender person to use facilities based on their biological sex. Swift J was clear that suitable alternative facilities may be required, where failure to provide them would amount to unlawful gender reassignment discrimination. This point was reflected in points (ix) and (x) of the EHRC guidance.

Finally, the Claimants argued that s.9(1) of the Gender Recognition Act required a certificated sex reading of the 1992 Regulations, not the biologicals sex reading adopted by the EHRC. Swift J made swift work of this contention, concluding that s.9(3) of the GRA operated to displace the effect of s.9(1) in relation to the 1992 Regulations, for much the same reason that the Supreme Court concluded similarly in relation to the Equality Act. Read as a whole, the 1992 Regulations adopt a biological meaning of sex, not least because that is necessary to protect the privacy of women and men when using sanitary, changing, and showering facilities [45]-[46].

In the alternative, the Claimants relied on obiter comments in Croft v Royal Mail to support the contention that when a person is in the process of undergoing gender reassignment, there comes a point where they should be entitled to use single-sex facilities in their acquired gender. Swift J ‘[did’ not attach any weight to this submission’ [50], concluding that these obiter comments had not been taken up by other judgments and pre-date the GRA. This reflects a general point I have made elsewhere that the GRA altered the previous state of the law by tying gender recognition to the process of obtaining a GRC and limiting its scope by reference to the provisions in the Act. Prior to the GRA, medical intervention conferred legal status. That is no longer the case in UK law.

(ii) So far as concerns provisions on services in EA 2010, there is no requirement to provide single-sex lavatories.

(iii) Provision of a single-sex lavatory is permitted by the EA 2010 if that is a proportionate means of achieving a legitimate aim.

Points (ii) and (iii) were not contested and the High Court concluded that they were accurate.

(vi) Failing to provide a female single-sex lavatory could comprise indirect sex discrimination against women.

The High Court concluded that this point was an accurate statement of law because it did no more than raise the possibility that it could be indirect sex discrimination to fail to provide a single-sex lavatory.

(v) Single-sex lavatories provided will cease to be single-sex if transsexual persons are permitted to use them other than in accordance with their biological sex.

The High Court similarly concluded that this point was an accurate statement of law and ‘is an inevitable consequence of the conclusion of the Supreme Court in For Women Scotland’ [53].

Bridgit Phillipson, the Minister for Women and Equalities had submitted that if female-only lavatories were provided they could continue to be single-sex even if they permitted trans women to access them. Phillipson had argued that such a lavatory could continue to rely on the protections afforded to single-sex services within the Equality Act.

Swift J noted that ‘this submission was not easy to follow’, but concluded that it is best addressed in the context of point (vi).

(vi) if trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory

The premise of this point is that a man excluded from a female-only lavatory that allowed trans women access would succeed in a claim of direct sex discrimination. Swift J concluded that a successful claim would depend on the facts of an individual case, but that

there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the ‘female’ lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled ‘women’.) [61]

It is important to be clear what Swift J did and did not say in this paragraph. This was not a conclusion about anything other than the argument that could potentially be made in response to a hypothetical claim of sex discrimination brought by a man excluded from trans inclusive ‘female’ lavatory. Nothing in this paragraph implies that such a lavatory would be lawful, even if the sex discrimination claim brought by an excluded man failed. Swift J did not say that it would fail. All he said here is that there is scope for a strong argument that a sex discrimination claim brought by a man might fail. If it did, the lawfulness of allowing trans women to access female-only facilities or services would depend on other applicable law, including the 1992 Regulations and the claims that could be brought from female service users based on sex discrimination and the Human Rights Act.

It is important also to read this paragraph in conjunction with the following paragraph at [77]

While I am less certain than the Interim Update that a man prevented from using the Claimants’ trans-inclusive female lavatory would be likely to establish the less favourable treatment necessary to make good a claim of direct sex discrimination, I do not consider that the way the point is put in the Update is necessarily wrong. Rather, it is a point that may turn on the facts of a situation. Even though the EHRC’s obligation when exercising its power under section 13(1)(d) of the EA 2006 is to provide an accurate statement of the law, the court must apply this requirement recognising that any statement of law will rest on some assumption of fact, even if only generic. Where a body such as the EHRC has issued guidance that rests on factual premises that are permissible, the court should hesitate before concluding that the guidance as issued was unlawful. Thus, I do not consider that the EHRC’s approach to point (vi) gives rise to any legal error.

The fact that there may be an argument advanced in a hypothetical case that could offer a defence to a claim of sex discrimination brought by a man was not sufficient for Swift J to conclude that the statement ‘if trans women are permitted to use a single-sex female lavatory all biological males must be permitted to use that lavatory’ was incorrect as a matter of law.

(vii) In some circumstances equality law may permit transsexual persons to be excluded from single-sex lavatories that correspond to their biological sex.

This point was a direct reference to paragraph 221 of For Women Scotland and so was clearly correct in law.

(viii) Lavatories in lockable rooms used one person at a time can be used by anyone.

(ix) If you provide single-sex lavatories do not fail to make provision for transsexual persons.

(x) If you provide single-sex lavatories (or other facilities), where possible also provide a mixed-sex facility.

Each of these points were clearly correct in law. Points (ix) and (x) specifically warned service providers to provide suitable alternative facilities for trans people where possible. At [72]-[73], Swift J rejected the contention that providing alternative facilities for trans people or providing mixed-sex facilities alongside single-sex facilities would amount to unlawful discrimination on the basis of gender reassignment.

Taking all of this together, the High Court concluded that the guidance in the Interim Update contained no errors of law. That element of the Claimants’ challenge therefore failed.

Human Rights

The Claimants had argued that, if the statements of law made in the Interim Update were correct, that would give rise to a breach of Convention rights. I have written about the human rights aspect of single-sex spaces earlier in the week (here). The High Court dealt with this challenge in much less detail that my post, but the conclusion is broadly the same: the interpretation of Article 8 advanced by the Claimants goes much further than the caselaw of the European Court of Human Rights and any interference with the right to gender recognition caused by the operation of single-sex services on the basis of biological sex will be justified by reference to the human rights of others.

The Claimants submitted that the Interim Update implies that a trans-inclusive facility (a female facility that may also be used by trans women) is unlawful and argued that if this were true, it would amount to an unjustified interference with the Claimants’ Article 8 rights.

Swift J assumed for the purposes of the case that a prohibition on provision of a trans-inclusive lavatory is capable of comprising an interference with article 8 and does give rise to such an interference, but did note that ‘each of those propositions is open to doubt’ [98]. Based on this presumption, the High Court made two observations. First, ‘such a prohibition is of a different order to any of the issues considered to date by the Strasbourg court; in each of Goodwin, AP, and TH the applicant was transsexual and faced obstacles to recognition of her civil status’ [98].

Second, Swift J noted that ‘the absence of a trans-inclusive lavatory is not the same as no lavatory at all. Even assuming interfere with article 8 right the interference would be less significant than considered by courts so far’ [98].

There is an interesting difference between how courts compare the relative weight of civil status and access to single-sex spaces and how many trans rights campaigners do. Courts are highly likely to consider civil status such as is reflected in state documentation to be the core of the right to gender recognition where there is limited discretion on the state. On that view, access to a single-sex facility which affirms a transgender person’s identity is a peripheral aspect of the right, if it is covered at all. In contrast, many campaigners and activists seem to presume that access to single-sex spaces is core to the right to gender recognition. Without any case law to support this contention, it is hard to see how it could be true, at least as a matter of the jurisprudence of the ECtHR.

The fact that an employer could provide a mixed-sex facility in addition to a single-sex meant that neither the Equality Act nor the 1992 Regulations give rise to ‘any necessary interference with any aspect of the Claimants’ article 8 rights’.

Even if that analysis was way, the Court concluded that the Claimants’ case would still fail:

Even if there is a relevant prohibition on provision by a service provider or an employer of a transinclusive lavatory, and a consequent interference with article 8 rights, that interference would be capable of being justified taking into account the rights and freedoms of others. Justification would depend on the facts of any particular situation. Nevertheless, the fact that justification is possible and on many scenarios highly likely to be present, is sufficient to dispose of this ground of challenge. [100]

Taking all of this together, the Court dismissed the challenge on all grounds. Nothing in the Interim Update amounted to an error of law; there were no breaches of the EHRC’s duties under the Equality Act 2006; and there was no interference with Convention rights.

However, despite this very clear judgment, there has been widespread misrepresentation of what the Court concluded. I hope to write a separate post detailing this misinformation.

In For Women Scotland v The Scottish Ministers, the Supreme Court held that references to ‘sex’ in the Equality Act 2010 pertained to biological sex. In doing so, it affirmed the default common law position, first explicitly stated in Corbett v Corbett and later upheld in Bellinger v Bellinger, that sex means biological sex unless legislation otherwise dictates.

The Gender Recognition Act 2004 (GRA) provides both a mechanism for a person to change their legally recognised sex and a set of provisions to limit the extent of that change. Alongside express limitations preserving the biological sex default in areas such as parenthood, succession, peerages, and sport, s.9(3) preserves that default in relation to any enactment or subordinate legislation where there has been provision made to that effect.

In FWS, the Supreme Court held that the default of biological sex will supersede the GRA where the “terms, context and purpose” of the enactment show that a biological meaning of sex is intended; where there is a “clear incompatibility” between the other enactment and a “certificated sex” reading, or because the provisions of the other enactment “are rendered incoherent or unworkable” by a “certificated sex” reading.

Since then, there have been several first-instance decisions which have grappled with what this means for the provision of single-sex services and the operation of domestic human rights law. Unless an identifiable human rights obligation requires otherwise, most legal provision of single-sex spaces will either be covered by the Equality Act 2010 (EqA) or other legislation to which the FWS test applies.

Applying For Women Scotland v The Scottish Ministers

Thus, for example, the Prisons and Young Offenders Institutions (Scotland) Rules 2011 state at Rule 126(1) that ‘Female prisoners must not share the same accommodation as male prisoners.’ Without a s.3 HRA interpretation, this can only be a reference to either biological sex or certificated sex. Following FWS these rules, properly interpreted, reference biological sex. Accommodation based on gender identity, genital surgery, or any other consideration is not permitted under these Rules. The only circumstance in which an alternative approach can be taken is if the Human Rights Act requires a reinterpretation and the conditions for using s.3 are satisfied. And where a biological sex reading is a fundamental feature of the legislation in question, as the Supreme Court held for the EqA, the only recourse in human rights terms, should a violation be established, is a Declaration of Incompatibility.

Since FWS, courts and tribunals considering human rights arguments in the context of single-sex spaces have come to different conclusions on the scope of the Article 8 right to gender recognition.

In Haynes v English Blackball Pool Federation, the Canterbury County Court was faced with an argument that it violate Article 8 ECHR to interpret the EqA as permitting sporting bodies to operate the female category based on biological sex. In response, HHJ Parker concluded at [122] that ‘it is inconceivable that the Supreme Court would have accepted that the EA 2010 as interpreted by it was incompatible with the ECHR’.

In Peggie v Fife Health Board, HHJ Kemp concluded that in the context of a female-only changing rooms, two competing Convention rights were engaged: on the one hand, the Article 8 rights of female users to privacy from the opposite sex while in a state of intimate undress; and, on the other, the Article 8 rights of transgender people to have their gender identity affirmed. HHJ Kemp includes within the latter right a presumptive entitlement to access single sex changing rooms based on gender identity. He therefore concluded that resolving these competing rights claims requires a balancing exercise which includes factors such as how well the trans person ‘passes’, what medical intervention they have had, how they dress, the views of other staff, and whether there are alternative facilities available [952].

In contrast, in Hutchison v Darlington NHS Trust, HHJ Sweeney concluded at [379], [439]-[442] that, while the Article 8 rights of female users of a single-sex changing room would be interfered with, excluding a transgender woman (recognised as legally and biologically male for the purposes of the EqA) from the female-only changing room would not amount to an unlawful interference with Article 8. The Tribunal concluded that any interference arising from maintaining a single-sex policy would be proportionate and lawful in pursuit of the legitimate aim of protecting the Article 8 rights of female users. However, failure to provide suitable alternative facilities for transgender people could also amount to an unlawful interference with Article 8.

Most recently, the Scottish Government is facing a judicial review challenging its policy of permitting some male prisoners to be housed in the female prison estate. Human rights arguments are being advanced on both sides.

The Scope of Convention Rights in Domestic Law

Domestic courts are under an obligation to keep pace with the case law of the European Convention on Human Rights: ‘no more, but certainly no less’ (R (Ullah) v Special Adjudicator at [20]). This principle has been interpreted as restricting the ability of domestic courts to develop human rights law beyond what has been recognised at Strasburg: ‘no less, but certainly no more’ (Al-Skeini v Secretary of State for Defence at [106]).

In Elan-Cane v Secretary of State for the Home Department the Supreme Court notes that, in cases concerning the scope of the Article 8 right to gender recognition, the first question is whether Article 8 imposes a positive obligation on the United Kingdom to provide what the claimant seeks [31]. In that case, the claim was for a legal entitlement to an X marker in place of a sex marker on passports.

In implementing positive obligations, States enjoy a margin of appreciation. In Elan-Cane the UKSC, discussing the right to gender recognition, noted that:

“Where a particularly important facet of an individual’s existence or identity was at stake, the margin allowed to the state would be restricted. Where, however, there was no consensus within the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raised sensitive moral or ethical issues, the margin would be wider. There would also usually be a wide margin if the state was required to strike a balance between competing private and public interests or Convention rights.” [35]

The Supreme Court also emphasised that the margin of appreciation is of particular significance in relation to positive obligations because it may require contracting states to modify their laws and practices in order to advance social policies which they may not wholly support, and without any democratic mandate or accountability [55]. The Court concluded that:

“Courts, including the European court, are expert in adjudication. They do not, on the other hand, possess the capacity, the resources, or the democratic credentials to be well-suited to social policy-making. When adjudication by the European court requires it to consider questions of social policy, it accordingly finds guidance in a consensus on the part of the contracting states, and is cautious before embarking on such policy-making in the absence of a consensus” [58].

Given the lack of consensus among member states on “X” passport markers, the Court held it was therefore constitutionally inappropriate for a domestic court to seek to develop the law in this manner:

“it is open to domestic courts to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law, on the basis of the principles established in that law. They should not, however, go further than they can be confident that the European court would go.” [63]

In R (AB) v Secretary of State for Justice at [57], the Supreme Court was similarly clear that domestic courts cannot expand the scope of human rights unless they are fully confident that such an expansion would be upheld by the ECtHR, as mandated by the Convention, and therefore outside of the Margin of Appreciation:

“it is not the function of our domestic courts to establish new principles of Convention law. But that is not to say that they are unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. In situations which have not yet come before the European court, they can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law.” [59]

The two most important questions to answer when considering the role of Convention rights in cases involving gender recognition and single-sex spaces are therefore (1) whether the ECtHR has recognised a right to access single-sex spaces as part of the right to gender recognition, and (2) if not, whether a domestic court can be fully confident that the ECtHR would impose a positive obligation on Member States to modify its law to prohibit single-sex spaces based on biological sex and require single-sex spaces based on some other matter related to gender reassignment (be it gender identity, certificated sex, appearance, medical intervention or otherwise).

The Scope of the Right to Gender Recognition

In Goodwin v United Kingdom, the ECtHR concluded at [90] that ‘the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable’. It therefore found a violation of Article 8 arising from the failure of the UK to provide for a system of gender recognition.

However, the Court also noted that, while there is no longer any discretion over whether or not legal gender recognition is provided for, ‘the appropriate means of achieving recognition of the right’ to gender recognition does fall within the margin of appreciation [93]. In R (McConnell) v Registrar General for England and Wales, in 2020, the Court of Appeal noted at [47] that this caveat ‘was and remains important’.

On one view, the ECtHR setting itself against ‘the unsatisfactory … intermediate zone’ means that it is a breach of Article 8 for there to be any circumstances where a transgender person is treated as male for some legal purposes and female for other legal purposes. Evidently, if that was correct, the ECtHR would not have concluded that the GRA remedied the Article 8 breach identified in Goodwin, given the various exceptions contained within the Act.

Since the Court in Grant did conclude that the GRA brought the UK into compliance with the Convention, we can conclude that the unsatisfactory nature of the ‘intermediate zone’ identified in Goodwin did not imply an obligation on Member States to introduce a system of gender recognition which never treated a transgender person in accordance with their biological sex. Rather, we can conclude that it is a clear breach of Article 8 to have no system of gender recognition at all, but that further questions about how precisely to implement such a system and how to balance gender recognition rights against the rights of others falls within the margin of appreciation and are for Member States to decide.

Nowhere has it been suggested that Article 8 requires a member state to make provision for a complete change in legally recognised sex for all purposes with no exceptions. Indeed, the ECtHR noted in Parry that the margin of appreciation may be wider in the context of gender recognition than in other areas.

This position has been recently reiterated in T.H., where the ECtHR noted that that there is a narrow margin of appreciation in the area of ‘the right to gender identity and personal development’, but also that:

“where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, or where the States are required to strike a balance between competing private and public interests or Convention rights, the margin of appreciation afforded to them in implementing their positive obligations under Article 8 will usually be wide.”

This again supports the view that there is very little discretion for member states to decide whether to implement some framework of gender recognition. However, this also reinforces the fact that in determining the domestic effect of gender recognition, particularly where it involves striking a balance between competing private and public interests or the rights of others, states will be afforded a wider margin of appreciation.

There has been no case law at the ECtHR level arguing that the right to gender recognition protected under Article 8 places a positive obligation on member states to confer a legal entitlement to use single-sex spaces of one’s choosing. To develop domestic law in this way, the following would have to happen:

1. A court or tribunal would have to be satisfied that the Article 8 right to gender recognition includes a right to use single-sex spaces on a self-identification or certificated sex basis.

2. A court or tribunal would then have to be satisfied that it would be a disproportionate interference with this right to operate single-sex spaces on a biological sex basis.

3. Given there is no case law supporting 1 and 2, a court or tribunal would have to be ‘confident’ that the ECtHR would develop the case law on Art. 8 to include both 1 and 2.

4. The Tribunal would then have to consider the domestic legislation in question (in this case the Equality Act 2010) and identify the specific provisions which need to be read down.

5. Finally, a court or tribunal would have to be satisfied that doing so would not conflict with a ‘fundamental feature’ of the legislation in question.

Given that an entitlement to access single-sex spaces such as female-only changing rooms, shower facilities, rape crisis centres, and prisons will necessarily engage the rights of others, it is highly likely to fall within the margin of appreciation for member states. If this is right, it is not open to domestic courts to hold that a prohibition on accessing single-sex spaces is a violation of the ECHR, as doing so would involve developing the Article 8 jurisprudence beyond that which has been recognised by the European Court.

Even if it were possible for domestic courts to do so, domestic human rights law precludes interpreting legislation in this way if it would conflict with a fundamental feature of the statute. This is of paramount importance in the context of single-sex spaces because the central question before the court in FWS was whether a biological interpretation of sex was fundamental to the EqA. The question before the Supreme Court was therefore not whether disapplying the effect of a GRC is compatible with Article 8 but rather when disapplication is envisaged within the terms of the GRA itself. The Supreme Court concluded that a biological interpretation of sex was fundamental to the EqA, by necessarily implication thereby precluding the use of s.3 HRA to circumvent that interpretation.

Similarly, even if one was satisfied that it is open to domestic courts to develop Article 8 in this way, any argument that other rules requiring or permitting single-sex spaces or facilities must demonstrate that such an interpretation would not conflict with a fundamental feature of the enactment requiring or permitting these spaces and facilities. There are therefore significant barriers to the use of s.3 HRA to reinterpret provisions relating to single-sex spaces away from the default of biological sex.

This post was originally published on the UK Constitutional Law Blog, available here. I am grateful to Paul Scott and Leah Trueblood for helpful comments and suggestions.

Further exploration of the themes addressed in this post can be found in Michael Foran, Sex, Gender Identity and the Law (CUP 2026) available here and available to pre-order here.

I’m going to do a live Q&A with paid subscribers this Sunday, the 15th of February, at 2pm UK time. There’s quite a bit we need to talk about. In particular, I plan on comparing the Sandie Peggie case with the Darlington Nurses case. We should also get into human rights and gender reassignment (and how that intersects with single-sex spaces).

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Leave other questions or potential topics in the comments below and I’ll be sure to discuss the best ones.

Thank you all so much for your support. I rely on it.

Sex Matters, a human rights charity campaigning on issues relating to sex-based rights, has been denied permission to judicially review the current arrangements for the open-air swimming ponds at Hampstead Heath. There are three ponds; a men’s pond, and a women’s pond and a mixed-sex pond. Since 2017 the policy on access to ponds had been based on self-identification, meaning that the women’s pond is open to biological women and any biological man who identified as a women. Similarly, the men’s pond is open to biological men and any biological woman who identifies as a man. Sex Matters sought permission to challenge the lawfulness of these policies.

The issue before the High Court at this stage of the case was not the lawfulness or the merits of the policy. It was whether Sex Matters could bring this case at all. Judicial review of the decisions of public bodies must be brought using a special procedure that is more limited than other kinds of legal claims. The reason for this is to protect public bodies from constantly having to go to court to defend their policies, spending vast sumps of public money. To protect public bodies, administrative law places two primary limitations on the ability to bring a legal challenge: time limits and standing.

Time Limits

The first major limitation on the ability to bring a judicial review is the short window within which a challenge can be brought. The normal time limit for brining a judicial review is no later than three months from the decision being challenged. There are some circumstances where an exception can be made to this rule, but it is unusual for one to be granted years after a decision has been made. It would therefore be very rare for a court in 2025 to grant permission to challenge decision made in 2017.

In this case, Sex Matters argued that the City of London Corporation made a new decision on 16 June 2025 to maintain the current arrangements pending a public consultation. If this was a new decision that was capable of being challenged as unlawful, then there would be three months from that date to bring a challenge.

The High Court did not accept that this constituted a fresh decision which is amenable to judicial review. Instead, it concluded that the Corporation is currently in the process of coming to a fresh decision, based in part on the outcome of a public consultation. It was therefore premature to bring the judicial review at this point. Once the Corporation comes to a fresh decision, a judicial review could be brought at that stage.

Standing

In addition to the requirement to bring a case in time, there is also a requirement that the person bringing the case have what is known as standing. To have standing in a judicial review case you must have a sufficient interest in the decision made. Ordinarily that means that a judicial review can only be brought by someone directly affected by the decision itself. There is some scope for public interest standing, where an organisation has standing because they have a general interest in the matter. Usually public interest standing is not granted when there are people with a more direct interest in the decision who could bring a claim, unless the claimant can show that they have sufficient interest in the decision.

In this case, the Corporation argued that Sex Matters does not have standing to being a claim because the argument advanced by Sex Matters is that the policy is unlawful on account of it being directly discriminatory. The Corporation argued that the correct venue for airing that challenge is not a judicial review in the High Court but a claim of direct discrimination in the provision of a public service brought by a user of the pond in the County Court.

The Hight Court agreed, noting that the centrality of a discrimination claim to the review sought heavily implies that the appropriate forum for resolving this dispute is a County Court with jurisdiction to hear the discrimination claim. Additionally, the appropriate claimant in a discrimination claim such as this would be someone claiming to have been discriminated against rather than a representative body such as Sex Matters.

Merits

Because the High Court concluded that Sex Matter did not have standing and that the case was premature, it did not consider it necessary to analyse the substantive merits of the challenge. There was therefore no finding that the policy in question was lawful and no finding that it was unlawful. The Corporation had indicated that it would seek specialist legal advice following the public consultation to ensure that its new policy would be compatible with the Supreme Court decision in For Women Scotland. Until that had been done and a decision made on a new policy, the Court did not consider it necessary to consider the matter further.

One point worth mentioning in passing here is that this approach of waiting for new legal advice following a public consultation is sufficient to ward off a judicial review in this case, but that should not be taken to mean that a similar approach is prudent for all cases. Should a discrimination claim be brought in relation to the policy, issues of standing and time limits will not apply in the same way. This case was decided with regards to the judicial review procedure, not the law relating to unlawful discrimination more generally. It should not therefore be seen as supportive of a general approach of waiting to change policies in the employment or public services contexts. Discrimination claims arising from these policies can be brought separately and are subject to less restrictive procedural constraints.

An Employment Tribunal has concluded that Sandie Peggie was unlawfully harassed by her employer, NHS Fife, when it failed to revoke permission granted to a male colleague to use the female changing room following her complaint.

This is a long and complicated judgment, which has caused controversy with allegations of fabricated quotes from legal authorities. This post will not address that issue except to note that it is bound to be relevant to the appeal.

For now, I hope to give an overview of what the ET has held and my assessment of how well it grappled with human rights law. Before that, however, it is important to stress that the judgment is binding only on the parties. It sets no precedent and makes no law until any appeal is determined.

The Outcome

The Employment Tribunal concluded that NHS Fife harassed Sandie Peggie by:

(a) failing to revoke its permission to the second respondent [Dr Beth Upton] to use the female staff changing room of the Emergency Department of Victoria Hospital, Kirkcaldy from on and after 16 September 2023 until the claimant returned to work on 14 April 2024, which resulted in two encounters between them on 25 October 2023 and 24-25 December 2023;

(b) taking an unreasonable length of time to investigate the second respondent’s allegations against the claimant between 5 January 2024, a reasonable period of time to do so being not more than six months;

(c) making reference to patient care allegations against the claimant on 28 March 2024; and

(d) giving an instruction to the claimant on 5 July 2024 not to discuss the case, until a further message on 22 July 2024 confirmed that that applied only to the investigation.

This outcome is unlikely to satisfy anyone. It effectively concludes that sometimes it will be harassment of a woman to permit a male colleague with the characteristic of gender reassignment to use the female changing room and sometimes it won’t be. Where it won’t be, it may be harassment of the male colleague to insist that female-only changing rooms are provided for biological women only.

The central issue

The core of the reasoning in this judgment starts over two hundred pages in. The Employment Tribunal sets out what it takes to be a central problem at the heart of this case:

[895] Where there is a conflict of protected characteristics and of beliefs of the nature that arises in this case an employer is faced with an exceptionally difficult matter to address. Whatever decision it takes can be challenged as unlawful under the Act, most obviously as one of harassment, but potentially direct or indirect discrimination in addition.

There is a lot to unpack here. In this post I will focus on what I take to be the central line of the Tribunal’s reasoning. In my view, most if not all of the legal conclusions flow from the below chain of reasoning:

1. Both Sandie Peggie and Beth Upton have rights protected under Article 8 of the the European Convention on Human Rights which are reflected in their rights under the Equality Act 2010. These rights are engaged in the context of a female-only changing room. For Peggie, the right concerns privacy from the opposite sex in a changing room. For Upton, the right concerns recognition of one’s gender identity by being permitted to use the female-only changing room. [854], [914], [915].

2. Because both parties have rights, both could argue that whatever NHS Fife did, it was discriminatory and harassing to them. [853], [895], [899], [906], [909].

3. Therefore a balance needs to be struck between the competing protected characteristics and Convention rights. [854], [884], [905], [914].

4. The Equality Act does not provide any mechanism to resolve this conflict. [884], [907], [918].

5. Therefore, in order for the Equality Act to be workable, the Employment Tribunal must identify a mechanism to resolve this conflict of rights. [884], [918].

6. The correct test to apply is a Bank Mellat proportionality analysis which asks:

   (i) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;

   (ii) whether the measure is rationally connected to the objective;

   (iii) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and;

   (iv) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. [920], [921].

7. Applying this test to the facts, NHS Fifes legitimate objectives were:

   1. to protect and uphold the rights of Beth Upton under both the Human Rights Act 1998 and the Equality Act 2010

   2. promoting and upholding diversity and inclusion in the workplace; and

   3. appropriate use and provision of available facilities in the workplace. [925].

8. The measure of granting permission to use the female-only changing room was rationally connected to these objectives. [926].

9. The less intrusive measure test must be applied to three different periods of time:

   1. 2 August to 15 September 2023:

      Since there were no complaints from female members of staff, it was reasonable for NHS Fife to proceed on the basis that allowing Upton to use the female-only changing room was the least intrusive means of achieving the objectives above. [932].

   2. 16 September 2023 to 13 April 2024:

      After Peggie complained, the least intrusive means of pursuing NHS Fifes objectives was to remove Upton from the female-only changing room on an interim basis. [937],

   3. From 14 April 2024 onwards:

      After a solution to the rotas had been found, the least intrusive measure was to permit Upton to use the female-only changing room again. [938], [939].

10. As regards the balance test, the Tribunal concluded at [952] as follows:

    whether to permit a trans woman to use a particular single sex space such as a changing room which meets the balance test depends on all the circumstances and includes factors such as the views of other staff as expressed to the employer, how many do so and in what terms, the stage of transition that the trans person has reached including what if any changes to the physiological attributes of sex the person have been made and which the trans person chooses to inform the employer of, the trans person’s appearance as can be observed by others, the wishes of the trans person, the options where other facilities exist and what the employer knows or ought reasonably to know.

11. Applying this to the facts of this case, the Tribunal concluded at [965] that:

    for the period 16 September 2023 to 13 April 2024 the grant of permission by the first respondent to the second respondent was not lawful under the 2010 Act, and as a result the claimant’s perception of harassment when the second respondent was in the changing room on two occasions within those dates was reasonable in the circumstances. Outwith those dates the grant of permission was lawful under the 2010 Act, as her perception of harassment was not reasonable in the circumstances.

The Tribunal resolved this case by conducting a proportionality analysis and only then considering the application of the Equality Act to the facts. In my view, this was a flawed approach which impermissibly considered proportionality entirely free from the background statutory context, read in conjunction with domestic human rights principles. In what follows, I will set out my view on some of the specific areas where the ET erred. This will not be fully comprehensive. The judgment is long and convoluted. I’ve focused on these issues for now as they set what I think is the lens through which the ET approached this case.

[PAYWALL HERE]

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Melanie Field, an independent advisor on equality and human rights who has worked in both the EHRC and the civil service, has written a detailed article on the practical implications of the For Women Scotland ruling. The central question she poses is whether the ruling requires women’s services to exclude trans women.

This is often the framing that is adopted by those who hold the gender identity belief that trans women are women: (1) women’s services are for women; (2) trans women are women; (3) therefore women’s services are for all women, including trans women unless the law indicates otherwise. From here it could be asked whether the Supreme Court ruling in FWS introduces a new rule which requires women’s services to exclude trans women.

In my view, (2) and (3) do not reflect the law. The important question then is not whether the ruling requires women’s services to exclude trans women but what the law considers to be a women’s service. Relatedly, we must ask who the law considers to be a woman for the purposes of women’s services.

The central difficulty with Field’s analysis is that it purports to be critiquing the EHRC but is overwhelmingly characterised by the adoption of arguments which have either been rejected by the Supreme Court in FWS or which are incompatible with the law as the Supreme Court set out. Anyone reading Field’s analysis must be cognisant of the fact that it proceeds on legal premises which are unfounded in law.

Where are we now?

Field begins by noting that the EHRC has submitted its draft Code of Practice on Services, Public Functions and Associations to the Secretary of State for Women and Equalities. We are now waiting for the Minister to decide whether or not to approve the Code. We have not see the Code but Field notes that it has been reported to be based on the view that compliance with FWS would mean that ‘trans people must not be allowed to access any separate- or single-sex services (SSS services) provided for people of the gender in which they present’.

Field is concerned about this analysis, noting that if it is correct, it would prevent trans people from accessing many single sex services at all and appears to risk returning trans people to the position they were in prior to the Gender Recognition Act 2004 - in the ‘intermediate zone as not quite one gender or the other’ held by the European Court of Human Rights in Goodwin v United Kingdom to be a violation of Article 8.

Before going any further, I think it is worth unpacking these claims. Field is arguing firstly that the EHRC have (incorrectly) adopted an interpretation of the law following FWS which would prevent trans people from accessing single-sex services provided for people of ‘the gender in which they present’. This implies that Field thinks that gendered presentation matters for access to single-sex services. That position has never been reflected in law.

The position of trans people without GRCs

Before the GRA was enacted, the default position in our law was that a person’s legally recognised status as a man or a woman was determined, for all purposes and in all contexts, by reference to their biological sex (Corbett v Corbett, R v Tan, Bellinger v Bellinger, A v Chief Constable of West Yorkshire Police). Indeed, in Croft v Royal Mail [2003] EWCA Civ 1045, the Court of Appeal concluded that

In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction. [60]

In the same judgment, the Court of Appeal expressly rejects Field’s ‘gender presentation’ framing, noting that ‘Presentation as a female does not necessarily make the applicant a female entitled to use female toilet facilities’ [51]. This position was complicated by the ruling in Goodwin v United Kingdom, which concluded that failure to provide some system of gender recognition for post-operative trans people was a violation of Article 8. This meant that there was a threshold of radical, invasive, and sterilising surgery which had to be met before the law recognised a change in legal sex status.

For a time, the legal position within the UK was that trans people who had not undergone full genital surgery were entitled not to be discriminated against because of gender reassignment, but were not entitled to use women-only services. The Court of Appeal in Croft did however imply that once medical intervention was at a particularly advanced stage (undefined by the Court), there may be an entitlement to access women-only services.

However, the Court of Appeal in A v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1584 also noted that

it is important to be clear that Goodwin decides that it will be a breach of article 8, in cases “where there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re- assignment”, to refuse to recognise that re-assigned gender ... Accordingly, in any case to which [the Human Rights Act] applies, it will in future be necessary to consider whether a failure or refusal to treat a post-operative transsexual as being of the reassigned gender involves a breach of Article 8. Since the application of article 8 is case-specific, and does not confer absolute rights, the court will have to consider in every case whether the subject’s interest in achieving respect and recognition for her gender re-assignment is outweighed by countervailing considerations of the public interest [41]

So, if it is accepted that the Article 8 rights of women are engaged in contexts such as toilets and changing rooms which involve the removal of clothing or the exposure of genitals, then the Court of Appeal is clear that any assessment of the rights of trans people must be balanced against the possibility that the respect for gender reassignment is outweighed by countervailing considerations, including the rights of others. Field argues that female-only services risk breaching the ECHR.

I have written about this argument elsewhere and will add nothing more about it here, save to note that there has been no finding of the European Court in relation to single-sex services where the rights of others are inevitably engaged.

The surgery-based position adopted in Goodwin was changed with the introduction of the Gender Recognition Act. Parliament removed the requirement to undergo surgery as a condition for legal gender recognition and introduced a statutory scheme with several express exceptions, including a general exception that the GRA is subject to provision made by any other piece of primary or secondary legislation, preserving the entitlement of Parliament or the government to impliedly disapply the GRA in other areas of law.

So, let’s take a step back and consider the legal position prior to FWS.

1. The default position is that a person is legally classed as a man or a woman based on their biological sex (Corbett; Bellinger; Croft; A)

2. This default position includes those with the protected characteristic of gender reassignment (Croft)

3. Those with the protected characteristic of gender reassignment are not entitled by self-identification or gendered presentation to access single-sex services intended for members of the target sex (Croft)

4. Goodwin v United Kingdom upheld a right for post-operative trans people to gender recognition in certain contexts, but was clear that this did not imply an absolute entitlement with no consideration of the rights of others.

5. The Gender Recognition Act introduced a mechanism for gender recognition which does not require surgery but does require that applicants actually go through the process in the Act. The effect of completing that process is not an absolute entitlement to recognition with no exceptions and there is a wide carve out for subsequent legislation.

Drawing this together, we can see that the legal position for those who do not have a gender recognition certificate (GRC) is clear: they are in law recognised as a man or a woman based on their biological sex, not self-identification or gendered presentation. They have no entitlement to use single-sex services based on self-identification or gendered presentation. Indeed, the Supreme Court was clear that FWS is not about this cohort of people:

The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex [26].

…

Nobody suggests that a person with a protected characteristic of gender reassignment is entitled on that basis alone to be treated as if their sex has changed for any legal purposes. Without a GRC a trans woman protected by section 7 of the EA 2010 is male for legal purposes and so too a trans man is female for legal purposes [201].

Prior to FWS, there were two (and only two) possible answers to the question ‘in law, what is a women-only service’. The first was that under the Equality Act 2010, a women-only service is a service offered to biological females only. The second was that under the Equality Act 2010, a women-only service is service offered only to biological females who don’t have GRCs and biological males who do have GRCs.

Field is subtly drawing upon legal material which presents a heavily caveated framework for legal gender recognition and implying that it supports a position that access to single-sex services is governed by gendered presentation. This has never been legally correct. Before we even consider what the Supreme Court decided, it is important to be clear about the state of the law prior to FWS. Field has not accurately presented the state of the law prior to FWS.

Instead, she is drawing on guidance issued by the EHRC which is now under review following FWS. Before discussing this guidance, it is important to stress that guidance is not law. The case law discussed above is law. To the extent that the guidance conflicts with the law, the law wins out. This is a basic point that any first year law student will be aware of, but which appears to inexplicably slip past many people.

Field argues that this guidance advocates for a default position that trans people are entitled to use single-sex services based on gender presentation alone, a position expressly rejected by the Court of Appeal in Croft. She then proceeds to examine circumstances where departure from this default could be legally permitted and implies that this must be justified as proportionate for each individual excluded:

There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service. This is allowed under the Act. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a Gender Recognition Certificate or not.

Field then argues that this analysis of an individual-by-individual assessment should prevail for all those with the protected characteristic of gender reassignment. In support of this she cites the Supreme Court claim that its decision in FWS ‘does not cause disadvantage to trans people, with or without a GRC’. That is quite an abstract statement from the Court to draw such a specific legal conclusion. Some have pointed to this sentence to support the idea that anything they consider to be disadvantageous to trans people is prohibited by FWS. Obviously, that cannot be right.

The difficulty with this move is that it presumes that the Supreme Court agrees with Field that the default legal position is one based on self-identification or gendered presentation. That is clearly not the legal position and never has been. It is clear to me that the Supreme Court was trying to communicate with this sentence the face that the existing protections for trans people have are not diminished by this judgment. That does not mean that the presumed entitlements advocated by Field and earlier incarnations of the EHRC can be resurrected from an abstract disclaimer, especially when contradicted by the clear terms of the judgment.

Indeed Lord Hodge, who delivered the unanimous decision of the Supreme Court in this case, later stated that

people had been led to believe by public authorities, among others, for the last 15 years that they had rights, which they didn’t have. So I have some sympathy, quite a lot of sympathy, with the feeling that they had something taken away from them.

It simply does not reflect the state of the law prior to or after FWS to imply that there was a default entitlement to be included within single-sex services based on self-identification or gender presentation. Nowhere in law has there been any suggestion that the default position is inclusion based on self-identification such that each individual exclusion of a trans person must be separately justified as a proportionate means of achieving a legitimate aim.

In FWS, the Supreme Court concluded that sex must mean biological sex for the purposes of the Equality Act. In so doing, the Court explained why the provisions permitting the establishment of single-sex services exist in the first place:

In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances. These provisions are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group – for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence. [211]

It is clear from this that the Supreme Court understands these provisions to operate on a policy-by-policy basis where each policy must be a proportionate means of achieving a legitimate aim and once it is, the relevant exception permits sex discrimination to establish and maintain the female-only nature of a service. The alternative is a case-by-case analysis at the level of each individual service user so that every separate exclusion of a biological man from a female-only service must be justified as proportionate. That cannot be correct. The Supreme Court has previously made it clear in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 that proportionality requirements do not necessitate such analysis and that policies can be held to be proportionate at the general level:

questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; [2009] 1 AC 287, the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38; [2015] AC 657, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; [2020] AC 869 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223. [29]

Those operating lawful single-sex services are entitled, by virtue of the single-sex nature of the service, to exclude all members of the opposite sex, regardless of whether they have a trans identity or a GRC:

if sex means biological sex, then provided it is proportionate, the female only nature of the service would engage paragraph 27 and would permit the exclusion of all males including males living in the female gender regardless of GRC status. [221]

Field states that she doesn’t see why the the analysis she has presented based on withdrawn guidance ‘should not continue to pertain in relation to all people with the protected characteristic of gender reassignment following the Supreme Court’s ruling’. The obvious reason why it should not ‘continue to pertain’ is that it was never the correct legal position. The Schedule 3 exceptions operate on a policy-by-policy basis: so long as it is proportionate, the female only nature of the service permits the exclusion of all males. There is no requirement to conduct an individual-by-individual proportionality test if operating within the schedule 3 exceptions.

Does including trans women make a women’s service ‘mixed-sex’?

Field then notes that the key point of the EHRC analysis of the effect of the judgment is the conclusion that including trans women within women-only services would render those services mixed-sex and thereby prevent the service provider from relying on the single-sex exceptions should a man without the characteristic of gender reassignment sue for sex discrimination arising from his exclusion from the service. Here is what Field states:

Put plainly, the EHRC says that a women’s service provided to one or more trans women would be a mixed-sex service which must also be provided to men, and the service provider would be likely to lose a sex discrimination claim brought by any man who is refused service.

Field then notes that this strikes her as ‘displaying a fundamental misapprehension of how the EA2010 works’. I will engage in detail with why Field thinks this below. However, before I do so, it might be worth setting out what the Supreme Court has said on this matter, specifically in the context of the conditions which must be met before a separate-sex service can be provided.

Schedule 3, paragraph 26 of the EqA sets out rules for when it is permissible to discriminate based on sex to provide a service to men and women separately. This can occur either where the same service is provided but not jointly, or where a different service is provided depending on whether the service user is a man or a woman. To avail of this exception, it must be the case that ‘a joint service for persons of both sexes would be less effective’ and that the limited provision is a proportionate means of achieving a legitimate aim. Additionally, for services provided differently depending on sex, the exception is applicable only if the extent to which that service is required by one sex makes it not reasonably practicable to provide the service except as a separate service provided differently for each sex. The example given in the Explanatory Notes is a charity setting up separate hostels, one for homeless men and one for homeless women where the hostels provide the same level of service to men and women because the level of need is the same but a unisex hostel would not be as effective. One reason for why a unisex hostel would not be effective would be because of the distinct privacy and safety needs of men and women. In FWS, the Supreme Court considered this paragraphs and concluded:

If sex has its biological meaning in this paragraph, then a service-provider can separate male and female users as obvious and distinct groups. For example, a homeless shelter could have separate hostels for men and women provided this pursued a legitimate aim, which might be the safety and security of women users or their privacy and dignity (and the same for male users). By contrast, if sex means certificated sex, the service-provider would have to allow access to trans women with a GRC (in other words, biological males who are female according to section 9(1)) to the women’s hostel. The following practical difficulties would arise. First, it would be difficult or impossible for the service-provider to distinguish between trans women with and without a GRC because, as we have explained, the two groups are often visually or outwardly indistinguishable. Secondly and more fundamentally, it is likely to be difficult (if not impossible) to establish the conditions necessary for separate services for each sex when each group includes persons of both biological sexes. For example, it is difficult to envisage how the condition in paragraph 26(2)(a) (a joint service for persons of both sexes would be less effective) could ever be fulfilled when each sex includes members of the opposite biological sex in possession of a GRC and excludes members of the same biological sex with a GRC. In other words, if as a matter of law, a service-provider is required to provide services previously limited to women also to trans women with a GRC even if they present as biological men, it is difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men [213]

Like the separate-sex exceptions, Schedule 3, paragraph 27 sets out rules for when it is permissible to discriminate because of sex to provide a single-sex service exclusively to members of one sex. Like paragraph 26, provision of a single-sex service must be a proportionate means of achieving a legitimate aim. In addition, one or more of the following conditions must be met:

1. Only persons of that sex have need of the service.

2. The service is also provided jointly for persons of both sexes, and the service would be insufficiently effective were it only to be provided jointly.

3. A joint service to both sexes would be less effective and the extent to which the service is requires by persons of each sex makes it not reasonably practicable to provide separate services.

4. The service is provided in a hospital or another establishment for persons requiring special care, supervision, or attention.

5. The service is provided for, or is likely to be used by, two or more persons at the same time, and the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.

6. There is likely to be physical contact between a person to whom the service is provided and another person where the other person might object if they were not of the same sex.

The Explanatory Notes give several examples of when these conditions would be met, including a cervical cancer screening service provided only to women as only women need the service; a father’s support group set up separately for men as there is insufficient attendance by men at the generic parents’ group; a women-only domestic violence support service with no equivalent men- only service due to insufficient demand; separate male and female wards in a hospital; separate male and female changing rooms in a department store; and a female-only massage service provided by a female massage therapist with her own business operating in her client’s homes because she would feel uncomfortable massaging men in that environment.

The point that Field omits from her analysis is that these conditions must be met before a women’s service is established in the first place. The Supreme Court in FWS was clear that if the conditions set out above are interpreted as referring to certificated sex (or self-identified sex, or sex based on gender-presentation), it renders their applicability practically non-existent:

The gateway conditions in paragraph 27(2) to (7) cannot be coherently applied if sex does not carry its biological meaning because it is hard to see how the condition in paragraph 27(2) (that only persons of one sex have need of the particular service) can be satisfied if each sex includes members of the opposite biological sex in possession of a GRC and excludes members of the same biological sex with a GRC.

Field has omitted from her analysis any consideration of the establishment conditions which must be met before a service provider can limit provision of a service by sex. These conditions cannot be ignored or circumvented by asserting that no discrimination arises from the provision of ‘separate but equal’ services. As Lady Hale noted in the Supreme Court decision in Coll the provision in Schedule 3 of the Equality Act which sets conditions for the establishment of services offered separately for men and women ‘proceeds on the assumption that, without it, the provision of single sex services would be unlawful discrimination’.

Another important point here is that the establishment conditions for a single sex service cannot be met if what is established is not a single sex service within the meaning of the Equality Act. This is why the Supreme Court has concluded that, if a service-provider is required to include trans women within a previously women only service, it is difficult to see who they could then justify refusing to provide that service to other biological men who do not identify as trans. Field considers this to display a fundamental misapprehension of how the Equality Act works. I would respectfully suggest that the unanimous judgement of Supreme Court is a better guide on how the Equality Act works.

Field also suggests that this view ‘displays a stark inconsistency with the analysis underpinning the EHRC’s April 2022 guidance, which contains no suggestion that including a trans person without a GRC in a SSS service would result in that service becoming mixed sex and render the relevant exceptions inapplicable’. Again, all that can be said here is that the EHRC’s Code of Practice must be compatible with the law, not its previous guidance. If the Code is compatible with the Supreme Court judgment but incongruent with previous guidance, then the previous guidance is what is flawed, not the Code.

How the Equality Act works

Field then argues that ‘The EA2010 protects individuals – not groups of people - from discrimination by imposing duties on employers, service providers and others, and providing a legal mechanism for individuals who have been discriminated against – treated less favourably (direct discrimination) or put at a particular disadvantage (indirect discrimination) because of a protected characteristic – to obtain a remedy.’ From here, she argues that the default position is one of equal treatment and therefore all exceptions in the Act which permit differential treatment between groups must be interpreted and applied restrictively.

While it is true that the Equality Act protects individuals from discrimination, Field’s analysis omits the point made by the Supreme Court, citing my work, that the group-based aspects of the Equality Act are essential for understanding the operation of the Act as a coherent whole:

The EA 2010 is also concerned to prohibit disguised discrimination which operates at a group level. This is important as Michael Foran explains (in an article entitled “Defining Sex in Law” (2025) 141 LQR 76, 91–92:

“Arguments concerning the definition of a protected characteristic are never simply manifestations of individual claims. They are always group orientated. The claim that one is a woman is a claim to be included within a particular category of persons and to be excluded from another. It is also a claim to include some persons and to exclude other persons within the group that one is a part of. This matters especially for aspects of the Equality Act 2010 which require duty-bearers to be cognisant of how their conduct might affect those who share a protected characteristic or where there is an obligation to account for the distinct needs and interests of those who share a particular characteristic.”

The group-based protections are aimed at achieving substantive equality of results for groups with a shared protected characteristic.

In the specific context of the provision of single sex services, the Supreme Court could not be clearer that these parts of the Equality Act exist to provide for the distinct needs of women as a group, stressing that a certificated interpretation of sex

would undermine the very considerations of privacy and decency between the sexes both in the availability of communal sleeping accommodation and in the use of sanitary facilities which the legislation plainly intended to provide for. If sex has a certificated sex meaning it is difficult to envisage any circumstances in which this gateway could sensibly be met since there would be no rational basis for saying that “for reasons of privacy” any communal accommodation and sanitary facilities should be used by women and trans women with a GRC (so legally female but biologically male) only, but not by trans women without a GRC who may be indistinguishable from those in possession of a GRC (and vice versa). This interpretation would run contrary to the plain intention of these provisions [224]

Ultimately, the Supreme Court concluded that ‘the plain intention of these provisions is to allow for the provision of separate or single-sex services for women which exclude all (biological) men (or vice-versa) [225]’. It is worth reiterating the Supreme Court’s explanation of the existence of these exceptions mentioned above:

In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances. These provisions are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group – for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence.

Field’s assertion that departures from the norm of equal treatment must be interpreted and applied restrictively, such that the Schedule 3 exceptions must be applied on a case-by-case basis is simply not congruent with the express wording of the Supreme Court’s reasoning in FWS.

Is Field right about the single-sex exceptions?

Field argues that the Single Sex Service exceptions ‘do not designate or certificate services or spaces as being separate- or single-sex’. By this she is arguing that the exceptions don’t operate in relation to the services themselves but only become engaged when an individual challenges their exclusion from the service. If this is right, it means that the Schedule 3 exceptions are not directed at any of the aims identified by the Supreme Court in FWS mentioned above. Those aims, such as the consideration of privacy and dignity between the sexes, are, on Field’s view, irrelevant to the operation of any given service.

I could devote paragraphs explaining why this is not the correct interpretation of the Equality Act. But, frankly, there is no need because all that Field is doing is explaining why she disagrees with the Supreme Court. She is welcome to do so. But that is not an explanation of the law as it stands. The Supreme Court is clear that the provisions permitting the establishment of women-only services must be interpreted with reference to a biological understanding of what it means to be a woman.

There is no general rule requiring female-only service provision. It is entirely possible to provide services to people on a mixed-sex basis. But if you are providing a women-only service, that service will not meet the establishment conditions in Schedule 3 if it is also intended to be provided to biological men. If you don’t meet the establishment conditions, you are not operating a women-only service and you are liable for any claim in discrimination or harassment which arises from the operation of the service.

Field suggests that a man without the characteristic of gender reassignment who is excluded from a trans-inclusive women’s service would struggle to establish a claim in sex discrimination because he won’t be able to establish a detriment due to the fact that he has access to the men’s service. That line of reasoning would be compelling were it not for the Supreme Court judgment in Coll mentioned above which is explicit that this reasoning would render the schedule 3 exception for separate-sex services unnecessary. There is an express carve out provided in the Equality Act to permit segregating men and women, should the establishment conditions be met. If Field were right about the futility of a sex discrimination claim brought by a man excluded from a women-only service, there would be no need for this exception in the first place.

Field is effectively arguing that there is no need for the Schedule 3 para 26 exception because no man would be able to bring a discrimination claim in circumstances where separate provision is provided. Again, she is free to disagree with Supreme Court jurisprudence. But she should avoid presenting this as if it is the EHRC who has departed from the law and not her.

Conclusion

The central flaw with Field’s analysis is that it proceeds from the presumption that the default position in our law is that people are entitled to use whichever single-sex service they like based solely on self-identification or gendered presentation and that derogations from that default must be justified as proportionate. That is simply not how the law has ever viewed this issue.

Field’s insistence that this is the default position means that her analysis of the implications of FWS remain wedded to a view based on a legally inaccurate interpretation of guidance which is flatly inconsistent with the express terms of the Supreme Court decision in FWS.

It is remarkable that this lengthy and wide ranging discussion of the law following For Women Scotland barely cites any law. The only cases cited are For Women Scotland and Goodwin. Neither are engaged with in any great detail. Instead, Field relies heavily on guidance and policy analysis.

While Field’s is presenting this analysis as a criticism of the EHRC and not the Supreme Court decision in FWS, it is clear that much of what she argues is flatly contradicted by the judgment and by previous Supreme Court jurisprudence. Those wishing to undermine, resist, or challenge the Supreme Court judgment may find much in this analysis for how they might like the law to be. But anyone hoping to act compatibly with the law following FWS would do better to simply read the judgment itself. It is long, but it is clear, and it does not support the claims Field is making.

Since the Supreme Court handed down its decision in For Women Scotland v The Scottish Ministers in April 2025, there has been an avalanche of misinformation about the what the ruling says, what is mentions, and what it doesn’t mention. This post contains a list of myths about the ruling with sources to combat these myths. Where possible, I have avoided adding in my own analysis of how the ruling fits into our existing equality law framework. This is to ensure that the reader is presented with nothing more than the evidence needed to combat this misinformation.

Myth: The judgment does not mention toilets

The judgment mentions sanitary conveniences or facilities several times.

First, at paras 41-42 discussing the Sex Discrimination Act 1975:

41 Certain exceptions were built into the legislation, some of which were repealed long before the whole Act was superseded by the EA 2010. For example, according to section 6(3) as originally enacted, the prohibition on discrimination under section 6(1) and (2) did not apply to employment '“for the purposes of a private household” or where the number of people employed was not more than five. The exception for small employers was repealed by the Sex Discrimination Act 1986 and the private household exception re-enacted in a much narrower form by section 1(2) of the 1986 Act, limiting it to where objection might reasonably be taken by a person living in the home to physical or social contact with someone of the opposite sex.

42 Section 7 of the SDA 1975 as enacted provided the exception which is reflected in the subsequent legislation, namely that discrimination is not unlawful where sex is a genuine occupational qualification (“GOQ”). The exception does not apply to discrimination in the terms and conditions on which a woman is employed; once a woman has been engaged in the job, there can be no genuine occupational reason for giving her less favourable terms and conditions than her male colleagues. The circumstances in which the defence of GOQ could be relied upon included the following:

(a) Where the essential nature of the job called for a man for reasons of physiology (other than physical strength or stamina), or for reasons of authenticity in dramatic performances: section 7(2)(a);

(b) Where the job needed to be held by a man to preserve decency or privacy because it was likely to involve physical contact or where men would be in a state of undress or using sanitary facilities: section 7(2)(b);

(c) Where the job holder had to live in premises provided by the employer and there were no facilities to accommodate women either to sleep separately or to use sanitary facilities. This was subject to the proviso that the exception applied only if it was not reasonable to expect the employer to provide separate facilities: section 7(2)(c);

(d) The job holder worked in a prison or hospital where all the people present were men and it was reasonable that the job should not be held by a woman: section 7(2)(d).

Second, at paras 50-53 summarising the meaning of sex within the Sex Discrimination Act 1975:

50 What we draw from this consideration of the SDA 1975 are the following points.

51 First, there can be no doubt that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex - the trans community of course existed at the time but their recognition and protection did not.

52 Secondly, the legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women.

53 Thirdly, a range of other exceptions were considered necessary and reasonable, particularly (a) in relation to sport and competitive activity where typical masculine physique would give an unfair advantage and (b) where positive action was needed to ensure that there was a reasonable representation of men and women on the boards of certain bodies.

Third, at paras 222-224 in the context of communal accommodation within the Equality Act 2010:

222 There is a specific exemption for communal accommodation in Schedule 23, paragraph 3 which allows for both sex discrimination and gender reassignment discrimination as follows: “(1) A person does not contravene this Act, so far as relating to sex discrimination or gender reassignment discrimination, only because of anything done in relation to - (a) the admission of persons to communal accommodation; (b) the provision of a benefit, facility or service linked to the accommodation.”

223 Communal accommodation is defined as follows:

“(5) Communal accommodation is residential accommodation which includes dormitories or other shared sleeping accommodation which for reasons of privacy should be used only by persons of the same sex.

“(6) Communal accommodation may include - (a) shared sleeping accommodation for men and for women; (b) ordinary sleeping accommodation; (c) residential accommodation all or part of which should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.”

224 Here too it is plain that sex has its biological meaning. The Inner House however, held at para 59 that “sex” in this context is defined as including birth sex for those still living in that sex, and “acquired sex” for those in possession of a GRC in the opposite gender. In our judgment, this would undermine the very considerations of privacy and decency between the sexes both in the availability of communal sleeping accommodation and in the use of sanitary facilities which the legislation plainly intended to provide for. If sex has a certificated sex meaning it is difficult to envisage any circumstances in which this gateway could sensibly be met since there would be no rational basis for saying that “for reasons of privacy” any communal accommodation and sanitary facilities should be used by women and trans women with a GRC (so legally female but biologically male) only, but not by trans women without a GRC who may be indistinguishable from those in possession of a GRC (and vice versa). This interpretation would run contrary to the plain intention of these provisions.

Myth: The judgment does not mention changing rooms

The judgment mentions changing rooms at several points:

211 Part 3 of the EA 2010 regulates the provision of services and public functions, and we have set out above the terms of the prohibition in section 29 (making it unlawful, among other things, to discriminate in the provision of a service or the exercise of a public function). Schedule 3 contains exemptions from this general prohibition. As we shall explain, some of these permit what would otherwise constitute gender reassignment discrimination but make no similar provision for persons issued with a full GRC. Other provisions permit carve-outs from what would otherwise constitute sex discrimination under the EA 2010. In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances. These provisions are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group - for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) - for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence.

215 Paragraph 27 of Schedule 3 (“Single-sex services”) presents similar problems if a certificated sex interpretation is adopted. It deals with services provided to one sex only (for example rape or domestic violence counselling, domestic violence refuges, rape crisis centres, female-only hospital wards and changing rooms). It provides:

“(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex if - (a) any of the conditions in sub-paragraphs (2) to (7) is satisfied, and (b) the limited provision is a proportionate means of achieving a legitimate aim.

“(2) The condition is that only persons of that sex have need of the service.

“(3) The condition is that - (a) the service is also provided jointly for persons of both sexes, and (b) the service would be insufficiently effective were it only to be provided jointly.

“(4) The condition is that- (a) a joint service for persons of both sexes would be less effective, and (b) the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services.

“(5) The condition is that the service is provided at a place which is, or is part of- (a) a hospital, or (b) another establishment for persons requiring special care, supervision or attention.

“(6) The condition is that- (a) the service is provided for, or is likely to be used by, two or more persons at the same time, and (b) the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.

“(7) The condition is that- (a) there is likely to be physical contact between a person (A) to whom the service is provided and another person (B), and (b) B might reasonably object if A were not of the same sex as B.”

216 The gateway conditions in paragraph 27(2) to (7) cannot be coherently applied if sex does not carry its biological meaning because it is hard to see how the condition in paragraph 27(2) (that only persons of one sex have need of the particular service) can be satisfied if each sex includes members of the opposite biological sex in possession of a GRC and excludes members of the same biological sex with a GRC.

217 Likewise, a certificated sex interpretation of the conditions in paragraph 27(6) and (7) (that a person of one sex might reasonably object to the presence of a person of the opposite sex, and the physical contact provision) will not be capable of being fulfilled in practice. Again, it is difficult to imagine how or in what circumstances it might be considered reasonable for a woman to object to members of the opposite sex (in condition (6)) where “the opposite sex” would include trans women without a GRC (who remain legally male) but not to “members of her own sex”. This would arise if by operation of section 9(1) of the GRA 2004 the group of “members of her own sex” were to include biological men with a GRC, and so legally female who may be physically and outwardly indistinguishable from the former group of trans women without a GRC. While many women in a female-only changing room or on a women-only hospital ward or in a rape counselling group might reasonably object to the presence of biological males, it is difficult to see how the reasonableness of such an objection could be founded on possession or lack of a certificate. This is so especially when the distinction does not track physical appearance or presentation, and the woman is unlikely to have any information about the GRC at the point at which her objection might be raised. A trans woman with a GRC who presents fully as a woman may feel she is more likely to prompt objections from other users if she enters the men’s changing room or other facilities than if she uses the women’s changing room or facilities. But in facing that dilemma she is in the same position as a trans woman without a GRC. Although such trans women may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and dignity of the other women users, the Scottish Ministers do not suggest that a trans woman without a GRC is legally entitled to do so.

Myth: The judgment did not consider trans people’s human rights

The judgment spoke about the Article 8 rights of trans people extensively, concluding that the Gender Recognition Act 2004 was required to meet the Article 8 rights of trans people, that the Act as enacted provided more protection than the ECHR required (pre-empting developments in ECHR jurisprudence) and that Article 8 is a qualified right and can be legitimately interfered with to protect the rights of others where justified. The fact that the Supreme Court concluded that the current law is compatible with the human rights of trans people does not mean that it did not consider them:

63 The enactment of the GRA 2004 was prompted by the judgment of the European Court of Human Rights (“ECtHR”) in Goodwin v United Kingdom (2002) 35 EHRR 18 (“Goodwin”) and by a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] 2 AC 467 (“Bellinger”). In Goodwin, the applicant’s biological sex was male but she had undergone gender reassignment surgery. The ECtHR held that it was a breach of the applicant’s right to respect for private life under article 8 of the Convention for there to be no legal recognition of her acquired gender. The ECtHR described the applicant as having initially undergone hormone therapy, grooming classes and voice training and as having “lived fully as a woman” since 1985. She later underwent gender reassignment surgery at a National Health Service hospital. The court referred to various di–culties faced by the applicant because of the failure of the law to recognise her acquired gender. These included her inability to change her birth certificate, and different treatment as regards social security and national insurance issues, pensions and employment. The court recognised that it had previously held that UK law did not interfere with respect for private life: para 73. But in the light of the then social conditions, it reassessed the appropriate application of the Convention.

64 The ECtHR was struck in particular by the fact that the National Health Service recognised the condition of gender dysphoria and provided reassignment surgery “with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs” (para 78). Yet there was no legal recognition of her changed status in law. The court discussed medical evidence about the causes of what it called “transsexualism” and noted that the vast majority of contracting states, including the UK, provided treatment including irreversible surgery. However, the ongoing debate about the exact causes of the condition were of diminished relevance because “given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role” it could not be suggested that there was “anything arbitrary or capricious in the decision taken by a person to undergo gender reassignment”: para 81.

65 The court concluded that the unsatisfactory situation in which postoperative transsexuals live in an intermediate zone which is not quite one gender or the other was no longer sustainable: para 90. 66 The Goodwin judgment was considered by the House of Lords in Bellinger where their Lordships were invited to declare a marriage valid which had been entered into by a man and a trans woman. Their Lordships declined to do so. Lord Nicholls referred to Goodwin and the Government’s announcement that it intended to bring forward primary legislation to address the issue. He said that recognition of Mrs Bellinger as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 “would necessitate giving the expressions ‘male’ and ‘female’ in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex”: para 36. Lord Nicholls went on:

“37. This would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced. The issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament, the more especially when the Government, in unequivocal terms, has already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive subject.”

67 The House of Lords held further that it was not possible to “read down” the 1973 Act and made a declaration of incompatibility under section 4 of the Human Rights Act 1998. 68 The GRA 2004 came into force on 4 April 2005 and provides a framework for recognising a person’s reassigned gender. The compatibility of the UK’s provision for recognition of gender reassignment with article 8 of the Convention was considered by the ECtHR again in Grant v United Kingdom (2006) 44 EHRR 1. There a trans woman complained that she was only entitled to receive her state pension at age 65, the age for men, rather than at 60, the age for women. She had been issued with a GRC once the GRA 2004 came into force. The court held that the duration of the applicant’s victim status lasted from the occasion on which she was refused a pension following the court’s judgment in Goodwin until the passing of the GRA 2004: para 43.

73 From its enactment, the GRA 2004 went further than the decision in Goodwin may strictly have required at that point to ensure compliance with article 8. The applicant in Goodwin had undergone what the ECtHR described as “the long and difficult process of transformation” (para 78), but the GRA 2004 recognised a broader class of transgender people as entitled to formal recognition even if they had not undergone surgery. In that respect, the GRA 2004 anticipated the decision of the ECtHR in AP, Gar on and Nicot v France (Application Nos 79885/12, 52471/13 and 52596/13) (unreported) 6 April 2017. In that case the court held that it was a breach of article 8 to make legal recognition of a personÕs transgender status conditional on sterilisation surgery or on treatment which entailed a very high probability of sterility: see para 120 of the judgment. The court noted that imposing such a pre-condition presented transgender persons “with an impossible dilemma” if they did not want to undergo sterilisation surgery or treatment (para 132). That condition amounted to a violation of article 8. However, there was no breach of article 8 in requiring a diagnosis of gender dysphoria. There was at that time near-unanimity amongst contracting states in requiring such a diagnosis and imposing that requirement did not infringe article 8: see para 140.

85 In Carpenter v Secretary of State for Justice [2015] 1 WLR 4111 a trans woman challenged the requirement under section 3(3) of the GRA 2004 that she had to provide details to the Panel of the surgical treatment she had undergone for the purpose of modifying her sexual characteristics. She argued this infringed her article 8 rights because applicants could be issued with a certiÞcate without having undergone surgery and without therefore having to provide such details. The challenge was rejected. Thirlwall J accepted that the requirement to provide medical details engaged the article 8 right to respect for private life. However, where an applicant had undergone surgery, or planned to do so, that fact was highly relevant, if not central, to the application and was plainly necessary to the Panel’s consideration of the criteria in section 2(1)(a) to (c) of the GRA 2004. Thirlwall J said at para 23: “Undergoing or intending to undergo surgery for the purposes of modifying sexual characteristics is overwhelming evidence of the existence now or previously of gender dysphoria and of the desire of the applicant to live in the acquired gender until death. No competent, conscientious medical practitioner could produce a report on gender dysphoria (past or present) which did not refer to treatment received.”

86 She also recorded at para 24 of her judgment that counsel for the Secretary of State had told the court that where an applicant has not undergone any treatment, it is the Panel’s usual procedure to require the second report submitted by the applicant to explain why this is the case. She concluded (para 28) that given that the information was necessary to the decision to be taken and that its dissemination beyond the Panel was prohibited, the provision of the information was necessary and proportionate to the legitimate aim and that there was no breach of article 8.

Myth: The judgment did not define biological sex

The Supreme Court defined biological sex as the sex of a person at birth, relying on both the ordinary meaning of the phrase and making reference to established case law on the issue.

7 We also use the expression “biological sex” which is used widely, including in the judgments of the Court of Session, to describe the sex of a person at birth, and we use the expression “certificated sex” to describe the sex attained by the acquisition of a GRC.

The Supreme Court did not elaborate on meaning of this definition in its judgment.

Myth: Because the Supreme Court did not elaborate on ‘sex at birth’, our law has no definition of biological sex.

The reality is that there is existing case law from the Superior Courts on the meaning of ‘sex at birth’, or ‘biological sex’. The fact that the Supreme Court did not rehash that case law does not mean that the case law does not exist or is not applicable to resolving a dispute as to someone’s biological sex.

The leading case is Bellinger v Bellinger [2003] UKHL 21 at paras. 5-11:

5 The indicia of human sex or gender (for present purposes the two terms are interchangeable) can be listed, in no particular order, as follows. (1) Chromosomes: XY pattern in males, XX in females. (2) Gonads: testes in males, ovaries in females. (3) Internal sex organs other than the gonads: for instance, sperm ducts in males, uterus in females. (4) External genitalia. (5) Hormonal patterns and secondary sexual characteristics, such as facial hair and body shape: no one suggests these criteria should be a primary factor in assigning sex. (6) Style of upbringing and living. (7) Self-perception. Some medical research has suggested that this factor is not exclusively psychological. Rather, it is associated with biological dierentiation within the brain. The research has been very limited, and in the present state of neuroscience the existence of such an association remains speculative.

6 In the vast majority of cases these indicia in an individual all point in the same direction. There is no di±culty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual. In such cases classiÞcation of the individual as male or female is best done by having regard to all the factors I have listed. If every person has to be classiÞed as either male or female, that is the best that can be done. That was the course, in line with medical opinion, followed by Charles J in W v W (Physical Inter-sex) [2001] Fam 111, 146dÐf. That is not the problem arising in the present case.

7 Transsexual people are to be distinguished from inter-sexual people. Transsexual is the label given, not altogether happily, to a person who has the misfortune to be born with physical characteristics which are congruent but whose self-belief is incongruent. Transsexual people are born with the anatomy of a person of one sex but with an unshakeable belief or feeling that they are persons of the opposite sex. They experience themselves as being of the opposite sex. Mrs Bellinger is such a person. The aetiology of this condition remains uncertain. It is now generally recognised as a psychiatric disorder, often known as gender dysphoria or gender identity disorder. It can result in acute psychological distress.

8 The treatment of this condition depends upon its severity and the circumstances of the individual. In severe cases conventional psychiatric treatment is inadequate. Ultimately the most that medical science can do in order to alleviate the condition is, in appropriate cases, to rid the body of its intensely disliked features and make it accord, so far as possible, with the anatomy craved. This is done by means of hormonal and other treatment and major surgery, popularly known as a “sex change” operation. In this regard medical science and surgical expertise have advanced much in recent years. Hormonal treatment can change a person’s secondary sexual characteristics. Irreversible surgery can adapt or remove genitalia and other organs, external and internal. By this means a normal body of one sex can be altered so as to give the appearance of a normal body of the other sex. But there are still limits to what can be done. Gonads cannot be constructed. The creation of replica genital organs is particularly difficult with female to male gender reassignment surgery. Chromosomal patterns remain unchanged. The change of body can never be complete.

9 Surgery of this nature is the last step in what are typically four steps of treatment. The four steps are psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the “real life experience”), and finally, in suitable cases, gender reassignment surgery. In February 1981 Mrs Bellinger, having been through the previous stages of treatment, successfully underwent this form of surgery. This involved removal of her testes and penis and, in the words of Johnson J, “the creation of an orifice which can be described as an artificial vagina, but she was still without uterus or ovaries or any other biological characteristics of a woman.” A chromosomal test, dated 8 April 1999, showed her to have a karyotype 46XY pattern, an apparently normal male karyotype.

10 For completeness I should mention in passing that a transsexual person is to be distinguished from a homosexual person. A homosexual is a person who is attracted sexually to persons of the same sex. Nor should a transsexual person be confused with a transvestite. A transvestite is a person who, usually for the purpose of his or her sexual gratification, enjoys dressing in the clothes of the opposite sex.

The present state of the law

11 The present state of English law regarding the sex of transsexual people is represented by the well known decision of Ormrod J in Corbett v Corbett (orse Ashley) [1971] P 83, 104, 106. That case, like the present one, concerned the gender of a male to female transsexual in the context of the validity of a marriage. Ormrod J held that, in this context, the law should adopt the chromosomal, gonadal and genital tests. If all three are congruent, that should determine a person’s sex for the purpose of marriage. Any operative intervention should be ignored. The biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.

Myth: The judgment was only about people with GRCs.

Strictly speaking, this is true. However the previous myth about self-identification being the default in our law was explicitly rejected by the Supreme Court:

26 The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex. This appeal addresses the position of the small minority of trans people who possess a full GRC.

Myth: The judgment isn’t law

There isn’t much to say here. Supreme Court judgments are law. They have immediate effect, stating the law as it has always been. There is no need for Parliament, the Government, the EHRC, a Parliamentary Select Committee, random MPs or anyone else to act or be consulted before the judgment takes effect.

Myth: The judgment can be ignored until the EHRC Code of Practice is published and approved by Parliament

See above.

The Council of Europe’s human rights commissioner, Dr Michael O’Flaherty, has written to the Women and Equalities Select Committee and the Joint Committee on Human Rights to raise concerns about the implementation of the Supreme Court judgment in For Women Scotland v The Scottish Ministers [2025] UKSC 16.

In his letter, which was accompanied by a separate letter addressing the policing of pro-palestine protests, O’Flaherty stated

My observations relate to the need to respect the human rights of trans people, in line with the UK’s international human rights obligations, including as regards further steps following the Supreme Court’s judgment in For Women Scotland Ltd. v. The Scottish Ministers. This is particularly important as the Supreme Court did not engage with these human rights issues. I understand that an updated code of practice for services, public functions and associations has recently been submitted for consideration by the UK government, as the last step before the document becomes subject to Parliamentary approval. In this respect, I note that Parliament has an important role as a guarantor of human rights, and in ensuring coherence and compliance.

The claim that the UK Supreme Court did not engage with human rights issues has been raised repeatedly since the judgement was handed down, most notably by barrister and former judicial assistant to the Supreme Court Crash Wigley. At the time of the judgment, I wrote a response to this claim noting

Wigley criticises the Supreme Court for not appearing to address the arguments of Amnesty International UK “in form or in substance anywhere in the judgment”. The arguments which Wigley criticises the Supreme Court for not considering were:

1. The positive obligation under Article 8, recognised in Goodwin v United Kingdom, to gender recognition.

2. The ECtHR has held that “gender identification” falls within the sphere protected by Article 8 and is tied to respect for dignity, human freedom, and protection of transgender people’s rights to personal development and physical and moral security.

3. The ECtHR has subsequently removed the requirement to undergo medical intervention prior to legal gender recognition.

4. The ECtHR has continued to emphasise the importance of the coherence of administrative and legal practices in the domestic system as an important factor in the Article 8 assessment.

From this Wigley argues that the Supreme Court “was presented with strong argument grounded in the case law of the ECtHR that a trans-exclusionary interpretation of sex would breach the Article 8 rights of trans people. In those circumstances, it should have considered whether a section 3(1) reading was necessary to avoid breaching the human rights of trans people. It did not do so.”

The central problem with this critique is that the Supreme Court does address these arguments and it does so in detail.

At para 65 the Court notes that in Goodwin, the ECtHR concluded (at para 90) that “the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable”. At para 63 the Court notes that the GRA was enacted as a response to Goodwin and the declaration of incompatibility made by the House of Lords in Bellinger v Bellinger, a case involving the validity of a marriage between a man and a trans woman at a time when same-sex marriage was not lawful. At para 66 the Supreme Court noted that the House of Lords in Bellinger held that it was not possible under our constitutional settlement to interpret “male” and “female” in s.11(c) Matrimonial Causes Act 1973 to refer to anything other than biological sex. Lord Nicholls noted at (para 37) that such an interpretation “would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion … the issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament”. It was therefore not possible to rely on s.3 of the Human Rights Act to “read down” the 1973 Act and so the House of Lords issued a declaration of incompatibility.

To remedy this breach, the Gender Recognition Act 2004 (GRA) was enacted. At para 68 the Supreme Court notes that in Grant v United Kingdom, the ECtHR concluded (at paras 41-43) that the violation of Article 8 identified in Goodwin was remedied when the GRA came into force. The GRA contains clear provisions limiting the effect of a GRC, both expressly in areas such as parenthood, succession, sport, and sex-specific criminal offences, and as part of the general exception in s.9(3) which limits the scope of a GRC where a contrary provision exists in any enactment or any subordinate legislation. It is therefore clear that the scope of the change in legal status provided in the GRA, and determined to be ECHR compliant in Grant, is not absolute.

At para 73 the Supreme Court expressly notes that “the GRA 2004 went further than the decision in Goodwin may strictly have required at that point to ensure compliance with article 8”. Indeed, they noted that the GRA anticipated the decision in Garçon and Nicot v France by declining to impose any requirements of medical treatment as conditions for gender recognition.

Taking all of the above together, it is simply inaccurate to claim, as Wigley does, that the Supreme Court did not consider Amnesty’s submissions “in form or in substance anywhere in the judgment”.

Whatever one may make of the analysis that the Supreme Court engaged in on the Article 8 rights of trans people, it is simply false to say that there was no engagement. The repeated assertion that the Court did not engage with these human rights issues serves only to misinform. It creates the impression that there are glaring omissions in the Court’s reasoning where there is none. The failure to engage with what the Court has actually said about Article 8, while claiming that the Court failed to engage with these issues, is difficult to justify, not least because it leads O’Flaherty to advance abstract claims about the content of Article 8 which fails to address the Supreme Court’s reasoning:

The European Court of Human Rights (the Court) has recognised that, the very essence of the European Convention on Human Rights (the Convention) being respect for human dignity and human freedom, it guarantees the right of trans people to personal development and to physical and moral security. Gender identity is covered as an aspect of private life under Article 8 of the Convention. This protection entails an obligation to provide for legal gender recognition, in order to avoid the unsatisfactory situation in which trans people live in an “intermediate zone [as] not quite one gender or the other” (Christine Goodwin v. the United Kingdom). The Court has further emphasised the importance of the impact on trans people of a discordance between their social reality and the law, with the coherence of the administrative and legal practices within the domestic system being an important factor in assessing whether there has been a violation of Article 8 (Hämäläinen v. Finland).

It should be ensured that steps taken towards implementing the Supreme Court judgment avoid a situation where a person’s legal gender recognition is voided of practical meaning, to the extent that it leaves trans people in an unacceptable “intermediate zone”.

The concept of an unacceptable intermediate zone arose directly in Goodwin. The Supreme Court’s analysis of the scope and reach of the Goodwin obligations, including the findings of the ECtHR that the UK met its obligations following Goodwin speak directly to how the Supreme Court understood the scope of this unacceptable ‘intermediate zone’. If O’Flaherty had engaged with the Court’s reasoning on the Article 8 issues raised in Goodwin and remedied with the enactment of the Gender Recognition Act 2004, we might have a better sense of how his understanding of this concept maps onto the jurisprudence of the ECtHR.

As it stands, O’Flaherty seems to envisage Article 8 as placing an obligation on member states to effectively adopt a position of self-identification for single-sex services by default:

Where possible, inconsistencies within the domestic system, particularly with regard to the interplay between key legal frameworks such as the Equality Act and the Gender Recognition Act, which could lead to legal uncertainty or to dissonance between the lived experiences of trans people and their treatment in law, should be avoided. It is also to be recalled that not all trans people wish to obtain legal gender recognition, and in reality simply live according to their gender identity. This does not in any way diminish their right to be treated with dignity, to be protected from discrimination, and to be able to participate in all areas of everyday life.

This approach could then be departed from in exceptional instances on a case-by-case basis:

In reality, tensions between the human rights of different groups in this context are likely to be exceptional in nature, and resolvable through nuanced, reasonable and balanced accommodations. This would also be in line with the approaches taken by various bodies of the Council of Europe (such as the Committee on the Prevention of Torture (CPT) or the Group of Experts on Violence Against Women (GREVIO)), which recognise the particular vulnerability of trans people, and which begin from the position of their inclusion within spaces according to their gender identity – with exceptions made on a case-by-case basis as necessary.

An unacceptable ‘intermediate zone’

In the aftermath of For Women Scotland, we have seen several commentators point to the reference in Goodwin to the unacceptable ‘intermediate zone’ as not quite one gender or the other. This is often presented as clear authority for the proposition that it would be an Article 8 violation to operate single-sex services and spaces on the basis of biological sex because doing so would place transgender people into this intermediate zone.

On this view, this means that it is a breach of Article 8 for there to be any circumstances where a transgender person is treated as male for some legal purposes and female for other legal purposes. Evidently, if that was correct, the ECtHR would not have concluded that the GRA remedied the Article 8 breach identified in Goodwin. Since the Court in Grant v United Kingdom did conclude that the GRA brought the UK into compliance with the Convention, we can conclude that the unsatisfactory nature of the ‘intermediate zone’ identified in Goodwin did not imply an obligation on Member States to introduce a system of gender recognition which never treated a transgender person in accordance with their biological sex. Rather, we can conclude that it is a clear breach of Article 8 to have no system of gender recognition at all, but that further questions about how precisely to implement such a system and how to balance gender recognition rights against the rights of others falls within the margin of appreciation and is a matter for Member States to decide.

Nowhere has it been suggested that Article 8 requires a member state to make provision for a complete change in legally recognised sex for all purposes with no exceptions. Indeed, the ECtHR noted in Parry v United Kingdom that the margin of appreciation may be wider in the context of gender recognition than in other areas:

In this context, the notion of ‘respect’ as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention.

This position has been recently reiterated in T.H. v. The Czech Republic, where the ECtHR noted that that there is a narrow margin of appreciation in the area of ‘the right to gender identity and personal development’, but also that:

where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, or where the States are required to strike a balance between competing private and public interests or Convention rights, the margin of appreciation afforded to them in implementing their positive obligations under Article 8 will usually be wide.

This again supports the view that there is very little discretion for member states to decide whether to implement some framework of gender recognition. However, this also reinforces the fact that the domestic effect of gender recognition, particularly where it involves striking a balance between competing private and public interests or the rights of others, will be afforded a wider margin of appreciation. As Buxton LJ noted in the Court of Appeal decision in A v. Chief Constable of West Yorkshire Police:

it is important to be clear that Goodwin decides that it will be a breach of article 8, in cases “where there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re- assignment”, to refuse to recognise that re-assigned gender … Accordingly, in any case to which [the HRA] applies, it will in future be necessary to consider whether a failure or refusal to treat a post-operative transsexual as being of the reassigned gender involves a breach of Article 8. Since the application of article 8 is case-specific, and does not confer absolute rights, the court will have to consider in every case whether the subject’s interest in achieving respect and recognition for her gender re-assignment is outweighed by countervailing considerations of the public interest.

While it is open to domestic courts to develop the law in relation to Convention rights beyond the limits of the Strasburg case law, the rule within domestic law is that this cannot go further than what courts are ‘fully confident’ the ECtHR would go (R (AB) v. Secretary of State for Justice [2021] UKSC 28, [59]; Elan-Cane at [63]). T.H. concerned the requirement to undergo medical intervention which had a high likelihood of resulting of sterility as a condition for gender recognition. There is no longer a margin of appreciation accorded to member states to set such a condition. In other areas, however, domestic courts must be confident that the ECtHR would find a violation before the domestic law can be developed. For example, there has been no case law at the ECtHR level arguing that the right to gender recognition protected under Article 8 places a positive obligation on member states to confer a legal entitlement to use single-sex spaces of one’s choosing. To develop domestic law in this way, the following must be established:

1. A court or tribunal must be satisfied that the Article 8 right to gender recognition includes a right to use single-sex spaces on a self-identification or certificated sex basis.

2. A court or tribunal must then be satisfied that it would be a disproportionate interference with this right to operate single-sex spaces on a biological sex basis.

3. Given there is no case law supporting 1 and 2, a court or tribunal must then be ‘fully confident’ that the ECtHR would develop the case law on Art. 8 to include both 1 and 2.

4. The Tribunal must then consider the domestic legislation in question (in this case the Equality Act 2010) and identify the specific provisions which need to be read down.

5. Finally, a court or tribunal must then be satisfied that doing so would not conflict with a ‘fundamental feature’ of the legislation in question.

Given that an entitlement to access single-sex spaces will necessarily engage the rights of others, it is highly likely to fall within the margin of appreciation for member states. If this is right, it is not open to domestic courts to develop the domestic Article 8 jurisprudence to go beyond that which has been recognised by the European Court.

The Political Fallout

The intervention from O’Flattery is highly political. That is part of the mandate of Commissioners, which includes identifying “possible shortcomings in the law and practice of member states concerning the compliance with human rights”. Nevertheless, given the current climate of ECHR scepticism across Europe, this kind of intervention may be imprudent. Given the state of the law set out above, coupled with the highly contested nature of the transgender issue throughout Europe, it is highly unlikely that the European Court of Human Rights will narrow the margin of appreciation should a case come before it.

This means that the only likely outcome of this intervention is the provision of ammunition to both sides of an increasingly fractious debate. Those critical of the Supreme Court judgment will use this letter to attack the Equality and Human Rights Commission’s new guidance on single-sex services. The difficulty here is that most opposition to the new guidance is in reality opposition to the law following FWS, something neither the EHRC nor the government can change without Parliamentary intervention.

More concerning perhaps is the ammunition this letter will provide for those sceptical of the UK’s continuing membership of the ECHR itself. In a report in the Times today, the home secretary Shabana Mahmood strongly criticised this intervention as doing little more than undermine support for the ECHR:

A senior government source said Mahmood “fundamentally disagrees with the assessment” made by O’Flaherty and warned “it doesn’t help sustain public confidence in the European Convention when the council is seen to intervene in domestic politics and national security” in this way. The source warned it would play into the hands of Reform UK and the Conservatives, which have both advocated leaving the ECHR.

A second government figure said it was “supremely unhelpful” to those attempting to make the case that the ECHR could be reformed while remaining a signatory to the convention.

…

Mahmood’s allies said she considered the Supreme Court’s judgment to be “beyond reproach”.

Those who wish to see the UK remain within the ECHR are likely to see this intervention from O’Flaherty as ill-timed and ill-judged. Speaking as an equality and human rights lawyer, there is a recurring issue in this space where commentators flee to the lofty heights of abstraction when seeking to advance highly aspirational interpretations of human rights obligations. It is always open to the astute lawyer to focus on values such as dignity or concepts such as an intermediate zone to advance a position which is not supported by legal doctrine but which has the right vibe. This is particularly frustrating when these appeals to abstraction are accompanied by admonishment of the senior judiciary for not engaging sufficiently with human rights issues when they have done exactly that.

Those sceptical of human rights law often critique it for the potential for highly political interventions into areas of extreme political sensitivity. O’Flaherty’s intervention is unlikely to have assuaged these concerns.

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