Updated guidance for public bodies after the UK supreme court’s ruling that a woman is defined in law by biological sex is expected to be issued by the summer, the head of the equalities regulator said on Thursday.
Lady Kishwer Falkner, the chair of the Equality and Human Rights Commission, described the ruling as “enormously consequential”, telling BBC Radio 4’s Today programme: “We are going to have a new statutory code of practice, statutory meaning it will be the law of the land, it will be interpreted by courts as the law of the land. We’re hoping we’re going to have that by the summer.”
She said it would give “clarity” that trans women could not participate in women’s sports or use women-only toilets or changing rooms, and the NHS must update its guidance on single-sex wards based on biological sex.
Asked if the supreme court ruling was “a victory for common sense”, she said: “Only if you recognise that trans people exist, they have rights and their rights must be respected. Then it becomes a victory for common sense.
“It’s not a victory for an increase in unpleasant actions against trans people. We will not tolerate that. We stand here to defend trans people as much as we do anyone else. So I want to make that very clear.”
She emphasised that trans people still had clear protection under legislation. “They are covered through gender reassignment … and they’re also covered by sex discrimination.”
Asked to give an example, she said: “We’ll have to flesh this out in the reasoning, but I think if you were to have an equal pay claim, then depending on which aspect of it that it was, you could use sex discrimination legislation. If a trans person was fired, lost their employment because they happen to be trans, that would be unlawful, still absolutely unlawful, and we stand ready to support those people and those claims.”
On the risk that trans people will no longer be able to use facilities designed for either male or female, she added that trans rights organisations should push for more neutral third spaces. “But I think the law is quite clear that if a service provider says we’re offering a women’s toilet, that trans people should not be using that single-sex facility.”
Falkner added that the EHRC would pursue the NHS to change its existing guidance on the treatment of trans patients, which currently say that trans people should be accommodated in single-sex accommodation according to their gender identity, rather than their assigned sex at birth.
“They [the NHS] have to change it. They now have clarity,” she said. “We will be having conversations with them to update that guidance.”
The “efficacy” of the gender recognition certificate, a UK legal document that recognises an individual’s gender identity, allowing them to legally change their sex, would be re-examined, she believed. The government is considering introducing digital IDs, “and if digital IDs come in, then what documentation will provide the identity of that person? So it’s going to be a space that we’ll have to watch very carefully as we go on.”
