Trans people like me will still be protected by law, no matter what opponents think

However much campaign groups might try to claim otherwise, it will still be indirect discrimination to put a policy in place excluding trans people from facilities consistent with their gender, writes barrister Robin Moira White

Wednesday was a day of mixed feelings: jubilation for a number of women’s groups, and deep concern among those supporting transgender people in the UK. The Supreme Court handed down its ruling that “sex” in the Equality Act 2010 (EA), Britain’s major discrimination statute, means “biological sex” in the sense of the sex recorded on an original birth certificate, and does not include “certified sex” in the sense of its being certified by a trans person’s gender recognition certificate (GRC) obtained by the process specified under the Gender Recognition Act 2004 (GRA).

The litigation was generated by some relatively esoteric guidance issued by the Scottish government about who was to be regarded as a “woman” in populating the boards of public bodies in Scotland. The ruling was surprising, because the two previous stages at the Scottish Court of Sessions had taken the opposite view.

We know the ruling is wrong in two ways. Firstly, Melanie Field, the retired civil servant who led the EA drafting team in 2009-2010, posted a clarification on her LinkedIn account that the team had worked on the assumption that “sex” included “certified sex”. Secondly, this ruling will likely put the UK in breach of its European Convention on Human Rights obligation to provide an effective means for a person’s affirmed gender to be recognised by the state. That is likely to require a trip back to the European Court in Strasbourg to put it right.

A feature of the Supreme Court is that it heard from no trans people or trans-focused organisations, although Amnesty got an honourable mention. This illustrates the dangers of creating law “about us without us”. It would be very surprising to have had a hearing about women’s rights without women being heard: the same is true here for trans people. As the Court of Sessions showed, a different result was perfectly possible.

If you were to believe some of the more excitable comments by some journalists and anti-trans women’s groups, trans people will be barred from all public facilities by the end of the Easter holiday. Not so.

The Supreme Court was keen to emphasise the still-existing protections for trans people who have the protected characteristic of gender reassignment. It is important to recognise that of the 100,000 or so trans people in the UK, only around 6,000 have a GRC. It will still be indirect discrimination on the grounds of gender reassignment to put a policy in place excluding trans people from facilities consistent with their gender. Unless that policy can be objectively justified, it will be unlawful discrimination. That applies to schools, hospitals, and retail outlets.

Layers of impracticability will also impact objective justification. How would enforcement work? Are cinemas to employ security guards on toilet facility doors? Will we need to carry birth certificates to prove our birth sex? I fear that litigation is going to be needed to show this. The false narrative that organisations must exclude trans people is likely to be spread by campaign groups and those parts of the media who want a culture war, casting the trans community as the enemy.

There are some specific areas – for example, employment where there is a genuine occupational qualification – where the removal of “certified sex” will remove the right for a person with a GRA to apply for that employment. This might be just the area in which an excluded candidate will choose to apply to the European Court of Human Rights.

My advice to trans people, employers and service-providing organisations is not to panic or be panicked. Organisations should remember how small this change is, and recognise the need to reconsider (but not necessarily revise) policies with good-quality advice.

Robin Moira White is the first barrister to transition in practice at the discrimination bar