As the Trump administration continues its efforts to erase transgender identity from the federal government and American society at large, the U.K. is grappling with the recent decision by its country’s high court ruling that the legal definition of men and women is based on biological sex.
Two weeks ago, the court handed down the decision in a case that addressed the Scottish government’s inclusion of transgender women in quotas to ensure gender balance on public sector boards.
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The judges were tasked with deciding the correct interpretation of “sex” and “woman” in legislation that enshrined sex-based legal protections, according to the BBC.
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The high court ruled on April 16 that the definition of sex as used in the U.K.’s Equality Act 2010 is “binary” and decided by biology. A person who was not born as a biological female cannot obtain the legal protections the Act affords to women by changing their gender with a Gender Recognition Certificate, the court ruled.
The decision means that transgender women can be excluded from “women-only” spaces and transgender men can be excluded from “men-only” spaces.
A women-only or lesbian-only association should not admit trans women (biological men), and a men-only or gay men-only association should not admit trans men (biological women).
The U.K.’s Equality and Human Rights Commission
Now, the U.K.’s Equality and Human Rights Commission (EHRC) has released interim guidance on how the public should interpret the ruling that women and men are defined by biological sex in law.
The new guidance says that in places like hospitals, shops and restaurants, trans women and men “should not be permitted to use” the facility that aligns with their gender.
The impractical and discriminatory effects of a ban on trans people using facilities or sharing spaces that align with their gender were highlighted as Akua Reindorf KC, a barrister and a Commissioner at the EHRC, tried to explain a scenario involving trans men.
She cited the example of a rape crisis counseling session and said that a trans man could be “excluded properly and lawfully from that because of the alarm that it may cause to vulnerable women to share that space with somebody who to all intents and purposes appears to be a man.”
She said that situations where trans men could be excluded from women’s facilities would be decided on a “case-by-case” basis.
Anti-trans activist and author JK Rowling announced the launch of a privately funded, women-only sexual assault crisis center in 2022 that excludes transgender women. By the court’s definition and the commission’s guidance, trans men who are now legally women wouldn’t be welcomed in the space either.
The guidance also states that trans people should not be left without any facilities to use.
“Where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use,” the guidance states.
Where possible, mixed-sex restrooms, washing or changing facilities should be provided in addition to sufficient single-sex facilities, the guidance adds.
It’s also possible to have restroom, washing or changing facilities which can be used by all, provided they are “lockable rooms,” like a single toilet in a small business.
For schools, the guidance says, “Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required.”
The guidance goes on to advise “associations” — groups or clubs with more than 25 members — that “a women-only or lesbian-only association should not admit trans women (biological men), and a men-only or gay men-only association should not admit trans men (biological women).”
A government spokesperson welcomed “the clarity” the guidance brings for women and service providers.
“We will review and update policy wherever necessary to ensure it complies with the latest legal requirements,” the spokesperson said.
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