The ruling
On 16 April 2025, the Supreme Court (the highest court in the UK) ruled on what many had seen as a very obscure case (For Women Scotland v The Scottish Ministers). The landmark judgement ruled that the protected characteristic of “sex” in the Equality Act 2010 refers to biological sex, not acquired gender or legal sex acquired through a Gender Recognition Certificate. The five top judges of the land have defined sex as binary and in doing so, set trans rights back 20 years.
The For Women Scotland campaign was waged by a group of gender critical women who were funded by, amongst others, JK Rowling and conservative religious groups and the court battles began in 2021.
Despite two previous rulings in favour of the Scottish Government saying that sex is “not limited to biological or birth sex” the For Women Scotland campaign continued, backed by seemingly unlimited funds, to challenge in the courts until 16 April.
It is worth noting that in delivering the judgement Lord Hodge stressed that
“We counsel against reading this judgement as a triumph for one or more groups in society at the expense of another – it is not.”
The Judge, should have saved his breath. The unseemly celebrations held outside the courts and the subsequent rushed and poorly drafted interim guidelines from the Equality & Human Rights Commission (EHRC) have already led to confusion uncertainty and a considerably heightened risk to trans, intersex and gender diverse people as well as women who do not conform to a traditional ‘feminine’ appearance.
The practical implications of the ruling
The EHRC has issued guidelines that cover a range of services offered by organisations who can now legally exclude trans people based on theoretical concerns only. These cover privacy, safety and protecting the dignity of non-trans users in the following settings:
- Women’s refuges and domestic violence shelters
- Hospital wards and health services
- Change rooms (shopping and leisure facilities)
- Everyday toilet facilities and single sex spaces in all public settings
- Communal accommodation and support housing.
This change isn’t just legal, it’s cultural and sends a message that trans people’s access to everyday services is open to debate, not protected by default.
How these guidelines impact various groups in the UK
The EHRC guidelines is not just a technical legal document, it represents a shift in how trans and intersex and gender diverse people are treated in law, policy and public life. It normalises their exclusion from everyday services and reinforces false narratives that trans women, in particular, are a threat when there is no evidence or risk, fuelling stigma, suspicion and fear.
- Transwomen – are to be barred from women’s spaces and in some instances forced to use men’s spaces leading to increased vulnerability to violence and assault both verbal and physical as well as loss of privacy and dignity.
- Transmen – will be barred from men’s spaces and faced with using women’s spaces where they will likely be unwelcome and risk being misgendered and marginalised.
- Non-binary people – will be left with greater ambiguity about which services they can access and a higher risk of denial when seeking support, with a sense of exclusion by default.
- Trans Youth – will experience greater isolation and reinforcement of the idea that their identity is invalid or unsafe.
- Cisgender women (biological women) – with a more masculine appearance may face the same harassment and discrimination as transwomen will, if their appearance does not conform to others’ expectations of a ‘real woman’.
- Women generally will now have to face an influx of transmen into women’s spaces which is likely to cause consternation and confusion. What is to stop a cis male entering claiming to be a transman?
- Disabled people – will be impacted by the enforced use of their facilities by able bodied, trans, non-binary and gender diverse people.
The impact of the ruling on Australia and what can be learnt from it – “The laws in the UK are not the laws in Australia”
On 17 April the day after the ruling, Dr Anna Cody the Australian Sex Discrimination Commissioner strongly criticised the UK Supreme Court ruling, expressing support for the trans and gender diverse community in a statement that was as robust as it was warmly welcomed by the community in Australia.
“Human rights belong to everyone. Trans and gender diverse people should be safe, respected and legally recognised.
The laws in the UK are not the laws in Australia. Our laws should reflect inclusion, respect and the right for all people to live with dignity.
Trans and gender diverse people are a vital part of our community and this moment reminds us that we must continue to advocate for the full enjoyment of human rights for all in our communities here in Australia, not retreat from it”.
As assuring as Dr Cody’s words have been, there remains a real threat that the hatred and bigotry that descended on the UK is maliciously threatening these shores.
Susan Smith one of the gender critical co-founders of the “For Women activists” has already turned her eyes on Australia, a country she does not reside in or seem to have any notable connection with, claiming that Aussie women are “treated as second class citizens”. Her equally vindictive supporters have gone on UK media claiming that
“Hopefully it will send shock waves around other common law countries such as Australia, which are having real issues with women’s rights there at the moment too.”
Salvation in a single word?
Whilst the fears of the trans and gender diverse community are very real and worrisome, a recent email received from Dr Cody’s office highlights a subtle but crucial word that could yet help to be the saviour and protect the community here in Australia from a similar flawed court judgement.
The email reads:
“Unlike the UK’s Equality Act, the Sex Discrimination Act (SDA) does not explicitly define ‘man’ or ‘woman’. In 2013, when protections for sexual orientation, gender identity and intersex status were added to the SDA, it was expressly noted that ‘man’ and ‘woman’ shouldn’t be interpreted so narrowly to exclude trans people from protections. Section 13 of the Explanatory Memorandum goes on to say
“‘Gender’ is used in this definition rather than ‘sex’ as it is a different concept, understood to be part of a person’s social identity (rather than biological characteristics). Gender refers to the way a person presents and is recognised within the community. A person’s gender might include outward social markers, including their name, outward appearance, mannerisms and dress. It also recognises that a person’s sex and gender may not necessarily be the same. Some people may identify as a different gender to their birth sex and some people may identify as neither male nor female”.
In conclusion
Whilst hope remains that a strong appetite for blatant discrimination and segregation of the trans and gender diverse community does not currently exist in Australian society, it would be wise for all in the LGBTI+ community remain vigilant, as an attack on one section of society inevitably leads to a loss of rights across many.
Rainbow Hub SA asks people to show solidarity and speak up against discrimination where they feel safe to do so. You can read more about advocacy in the Rainbow Rights Toolkit we developed in 2024 when we were part of COTA SA.
