Now it’s time to scrap the Gender Recognition Act
COMMENT
Just over a year ago, a UK Supreme Court ruling confirmed that the terms ‘woman’ and ‘sex’ in the Equality Act 2010 do indeed refer to a biological woman and biological sex
This didn’t do something new with the law, it simply established what the law already said.
That was important in itself though, because trans activists had been claiming for years that if you called yourself a woman then you were one. This in turn meant that you not only could be treated as a woman, you must be treated as a woman.
The ruling was crystal clear that wasn’t the case, at least for the purposes of the Act. To their credit, the Equality and Human Rights Commission (EHRC) followed pretty quickly with updated guidance that went to the Minister, Bridget Phillipson, in September of last year. Since then there had been radio silence – until last week when she agreed the statutory (note statutory) Code of Practice for Services, Public Functions and Associations (note again – not employers).
stop pretending you can change sex at all and scrap the Gender Recognition Act
In that interim period, the absence of updated official guidance had been used as an excuse not to implement the Supreme Court’s clear ruling. Schools and other areas of the public sector in particular have dragged their feet.
That excuse has now gone now, or at least it will have from July when it is supposed to come into force.
Women’s spaces are for women
So what does it say? Well essentially (and bearing in mind the Code runs to more than 300 pages) that:
- – Service providers can lawfully restrict access to single-sex spaces based on biological sex, provided it is a proportionate means of achieving a legitimate aim.
- – To avoid indirect discrimination against transgender people, organisations should consider providing pragmatic, alternative accommodations where possible, such as individual enclosed cubicles or mixed-sex spaces.
OK, what does that mean in plain English?
- – Men[1] are not allowed in women’s toilets, changing rooms and showers;
- – Fully mixed changing areas are permitted – the kind of changing villages you see in some leisure centres for example. What you can’t do is say that the only men who can access these spaces are trans women as that is likely to amount to unlawful sex discrimination;
- – If a man purporting to be a woman tries to use a single-sex space, the organisation can challenge them and respond to concerns from women without having to fear the ‘transphobia’ card being used against them;
- – It means organisations providing single-sex services, like refuges from domestic abuse or rape, aren’t going to be told they have to make those services available to men; and,
- – It means men can be stopped from competing in women’s sports.
13.107 …It is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service.
Example
13.108 Women-only communal changing rooms in a sports facility. Equality Act 2010: Draft Code of Practice for services, public functions and associations, 2026
There’s a lot more detail in those 300-plus pages which we don’t have time to go into here. But what is worth adding is that this does not now make it lawful to discriminate against trans people simply because they are trans. This lawful discrimination is on the grounds of biological sex, i.e. because they are men rather than women.
Scrap the GRA
This should make a lot of practical difference to protecting the safety of women and girls in particular. But importantly it does not remove the legal fiction of being able to change sex on official documents like birth certificates. Having a Gender Recognition Certificate doesn’t change your sex for the purposes of the Equality Act, but you can still present as the opposite sex on official papers.
The Supreme Court Ruling last year was an important step. This long overdue guidance is an important step. What needs to happen now is that we stop pretending you can change sex at all and scrap the Gender Recognition Act.
By Ciarán Kelly, Director