What is a women's service? A reply to Melanie Field

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.