The Supreme Court’s ruling that the definition of a woman in equality law is based on biological sex means trans women with a gender recognition certificate (GRC) can be excluded from single-sex spaces if ‘proportionate’.

Equality and Human Rights Commission (EHRC) chairwoman Baroness Kishwer Falkner has described yesterday’s ruling as ‘enormously consequential’ and she vowed to pursue organisations which do not update their policies.

On issues such as toilets, changing rooms and sports, Baroness Falkner echoed the Government in saying the ruling had brought ‘clarity’ to providers on their duties under equality law around single-sex spaces.

Asked if it was now simple that trans women cannot take part in women’s sport, she told BBC Radio 4’s Today programme: ‘Yes, it is.’

On changing rooms and toilets, Baroness Falkner said: ‘Single-sex services like changing rooms must be based on biological sex.’

She said there is no law against organisations providing a third space such as unisex toilets and suggested trans rights organisations ‘should be using their powers of advocacy to ask for those third spaces’.

The commission is expecting to lay an updated statutory code of practice before Parliament by the summer, and has said it is working ‘at pace to incorporate the implications of this judgment’ into the code for public bodies setting out their duties under the Equality Act.

Equality and Human Rights Commission (EHRC) chairwoman Baroness Kishwer Falkner has described yesterday’s ruling as ‘enormously consequential’

Baroness Falkner said the commission evaluates when the law is not followed by organisations and can speak to those bodies, or ‘use enforcement, compliance tools or whatever, we will be continuing to do that’.

Regarding single-sex hospital wards, she said the NHS will ‘have to change’ their 2019 policy, which says that trans people ‘should be accommodated according to their presentation’.

While the implications of the judgment are still being worked out, a string of organisations came forward to reveal changes to their policies.

This includes the British Transport Police (BTP), which said it had adopted a new ‘interim position’ which will see trans people held in custody searched by an officer in line with their birth sex.

Businesses will likely have to review and change policies, including on toilets, in light of the Supreme Court ruling, according to lawyer Peter Byrne, head of employment law at Slater and Gordon.

He said: ‘Lots of businesses are going to have to redraft policies around same-sex toilets.’

He said that while previously an employee might have been asked which toilet they felt comfortable using, ‘that option is probably going to disappear’.

‘My personal view is, in reality you’re going to end up asking them to use disabled toilets,’ he added.

Campaigners celebrate yesterday’s judgment outside the Supreme Court

Emma Bartlett, partner and diversity, equality and inclusion lead at law firm CM Murray, said trans employees could potentially end up having to use toilets on different floors at work.
She said: ‘I think the main issue for an employee who’s a trans person, if they are required to use a unisex toilet, rather than being able to use the toilet of the gender that they identify with, is that the unisex toilet might not be on the same floor that they work on, or there may not be a unisex toilet.

‘And so they may have to use the disabled toilet, and the disabled toilet might be in a different building, or might be five floors away.

‘And so their ability to just be efficient during their working day could be lost, and they will say that their dignity is impacted by that. And that’s going to be difficult.’

She said this issue could potentially ‘trigger some satellite litigation’ in the form of tribunals, but that the next question to be answered will be who they are compared with, to determine if there has been discrimination.

She added: ‘Is their comparator a man or a woman, or is their comparator, if they are identifying as a trans woman, a trans man?

‘Because the trans man is going to be treated exactly the same way as a trans woman, in which case, the claim doesn’t get off the ground. And so the first question is, well, who’s the right comparator?’

Lawyers predict trans women could be asked to use disabled toilets at work

More generally, Mr Byrne said his advice to his commercial clients will be ‘tread carefully’.

‘Every single business will have its own policy in place, you need to look at each individual policy and where that needs to be changed,’ he added.

He said businesses will need to look at their policies ‘very quickly’.

Baroness Kishwer Falkner said there is no law against organisations ‘providing a third space, an additional space, such as unisex toilets, for example, or changing rooms’.

Asked about the risk that trans people will no longer be allowed to use facilities designed for either male or female, she told BBC Radio 4’s Today programme that trans rights organisations should push for more neutral third spaces to accommodate trans people.

She said: ‘There isn’t any law saying that you cannot use a neutral third space, and they should be using their powers of advocacy to ask for those 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.’

Spencer West employment law partner Jonathan Mansfield said a neutral third space ‘is the answer’ but a challenge for businesses may be the layout of a building or the cost.

JK Rowling celebrated after the Supreme Court ruling and said it would protect ‘the rights of women and girls across the UK’.

The ruling comes after years of campaigning by gender-critical figures including Harry Potter author Rowling, who reacted by posting on X yesterday: ‘It took three extraordinary, tenacious Scottish women with an army behind them to get this case heard by the Supreme Court and, in winning, they’ve protected the rights of women and girls across the UK. @ForWomenScot, I’m so proud to know you.’

She later added: ‘Trans people have lost zero rights today, although I don’t doubt some (not all) will be furious that the Supreme Court upheld women’s sex-based rights.’

Trans activists and allies yesterday criticised the ‘evil’ Supreme Court decision ruling on the definition of a woman, accusing lawmakers of attacking minority groups and putting them at risk, and setting the community ‘back 20 years’.

The judgement could have far-reaching implications on how sex-based rights apply, including how women-only spaces are allowed to operate

Broadcaster and Loose Women co-host India Willoughby said the ruling marks a ‘dark day’ for the transgender community

There were calls amongst the LGBT+ community to ‘amplify trans voices’ and warnings that Britain was ‘following in the footsteps of Trump’s America’ after judges decided the definition of sex in the Equality Act is binary.

The likes of broadcaster India Willoughby, Drag Race UK stars Tayce and Tia Kofi and leading LGBT+ charities spoke out after the judgement was handed down this morning.

In a post on X, formerly Twitter, the Good Law Project said in a statement: ‘The Supreme Court sided with FWS [For Women Scotland]. But it didn’t hear from a single trans person.

‘This ruling sets a dangerous precedent and erases trans women from protections. It puts trans rights back 20 years. We won’t stop fighting for trans rights.’

In an 88-page ruling, the justices said: ‘The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.’

The decision could have far-reaching implications on how sex-based rights apply, including how women-only spaces are allowed to operate.

Reacting to the ruling, broadcaster and journalist India Willoughby, who was Loose Women’s first transgender co-host, said the decision marked a ‘grim day for Britain’.

Stars of Drag Race UK were amongst prominent members of the LGBT+ community to offer trans people support, with many taking to social media.

Drag queen Tayce posted on Wednesday: ‘UK supreme court is a POS [piece of s***]. My heart goes out to all my trans brothers and sisters eternally but more so today. Nothing or no-one can erase YOU.’

Co-star Bimini Bon-Boulash shared an image stating: ‘Trans women are women’.

And Tia Kofi uploaded a video to Instagram in which they said: ‘We now more than ever must be allies to the trans community.

Labour MP Nadia Whittome said she was ‘deeply disappointed’ with the ruling and ‘stands in unwavering solidarity with the trans community’

Drag artist Bimini Bon-Boulash shared an image on their social media stating: ‘Trans women are women’

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‘It cannot just be trans people who are expected to raise their voices to fight for their own existence. It must be exhausting to constantly be the ones to fight for your own existence. As allies it is our responsibility to amplify their voices.’

One LGBTQ+ venue owner said the trans community could be ‘erased by society’ after the Supreme Court’s judgement.

Jade Phoneix, who runs ZODIAC in Camden, said: ‘This transgression is evident that now, more than ever, Trans visibility is imperative.

‘We cannot be erased by society and treated as second-class citizens. We have existed for the longest time and cannot be denied.’

Ms Phoneix, who is one of very few Trans women to run a venue in the UK, said: ‘Our venue ZODIAC has been created and we are proud to be a trans owned and trans run safe space for the entire LGBTQ spectrum.

‘We must all come together and show solidarity at times like these.’

Model and trans activist Munroe Bergdorf said the LGBT+ community will ‘get through this together’ as she took to Instagram in the wake of the ruling.

‘Spending the next few days listening/speaking to legal experts about how this will impact the future of our community in the UK,’ she said. ‘In the meantime, please hold each other close.’

Posting on X, formerly Twitter, Labour MP Nadia Whittome said on Wednesday: ‘I share the deep disappointment in today’s Supreme Court ruling, and the concerns about what this will mean for trans women going forward.

Model Munroe Bergdorf said the trans community will ‘get through this together’ and urged LGBT+ people to ‘hold each other close’

Stars of Drag Race UK were amongst those to speak out in criticism of yesterday’s ruling

‘Today and every day, I stand in unwavering solidarity with the trans community. We must never stop fighting for trans rights.’

And activist Heather Herbert told the BBC the ruling means the UK risks ‘following in the footsteps of Trump’s America.’

The former Scottish Labour candidate said urgent ‘clarification’ is needed on the implications of the ruling, which she said continues a trend of ‘attacking minorities.’

LGBT+ charity Stonewall’s chief executive Simon Blake said: ‘[This ruling] will be incredibly worrying for the trans community and all of us who support them.

‘It’s important to be reminded the Court strongly and clearly re-affirmed the Equality Act protects all trans people against discrimination, based on gender reassignment, and will continue to do so.

‘Once we read and fully digest the judgement, we will work with stakeholders across all sectors to provide as much clarity as possible.’