For Women Scotland mull new legal action against Scottish Government
The anti-trans campaign group who took the case over the meaning of biological sex to the UK's highest court, and won, has now claimed the key motivation of the case has been lost amongst a growing debate on toilets.
The Supreme Court ruled that under the Equality Act 2010, a woman was defined by biological sex, excluding trans people with a gender recognition certificate (GRC).
Following the judgment in April, the Equalities and Human Rights Commission (EHRC) issued interim guidance that banned transgender people from using the toilets of their acquired sex.
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The contentious guidance was branded as 'cruel', and now a consultation, which has been extended, is now underway before full guidance is published.
The fallout from the ruling also saw trans women banned from taking part in women's football and cricket.
Speaking at a fringe event at the Scottish Conservative conference in Edinburgh this weekend, For Women Scotland (FWS) co-director Susan Smith claimed there has been 'extraordinary pushback' following the judgment.
'We don't want to go back to court, we really, really don't, but if we don't see some action that may be something we will have to consider,' she told journalists afterward.
Smith (below, left) said there were concerns about the lack of action by the Scottish Government on prisons and school guidance.
'We have spoken to the Scottish government and asked them to withdraw some of this guidance, just to say that it's under review – they don't have to re-issue anything at this point – because it's clearly unlawful, we really do need some action,' she said.
'They're telling us they have to wait for the EHRC revised guidance and we don't believe this is true.'
The EHRC guidance said that it is 'compulsory' for workplaces to offer single-sex toilets and changing facilities.
It said that trans women should not be allowed to use women's facilities and trans men should not be allowed to use men's facilities as 'this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex'.
The guidance then went on to say that trans people 'should not be put in a position where there are no facilities for them to use'.
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Smith claimed there has been too much focus on the issue of toilets.
'I wish we could stop talking about toilets all the time, because that wasn't really the reason we went to court,' she said.
'We went to court about the prisons, about the rape crisis centres, about the hospitals, where people are uniquely vulnerable.'
It comes after Harry Potter author JK Rowling, who donated to FWS crowdfunder to take their case to the Supreme Court, set up a fund to challenge public service providers and employers over the issue.
'We really need people to start challenging where they feel that organisations, local councils are not implementing the law,' Smith said.
'We're very fortunate to have the fighting fund that JK Rowling set up and that will make a massive difference because when people start to realise that there's a cost maybe they will start to apply the law.'
Current Scottish Prison Service (SPS) guidance states trans women prisoners cannot be housed on the female estate if they have been convicted of serious offences.
A spokesperson for SPS said: 'We have received the supreme court's judgment and are considering any potential impact it may have.'
The Scottish Government said it has 'been clear that we accept the supreme court judgment'.
'As the judgment relates specifically to the guidance issued under the Scottish Government's Gender Representation on Public Boards 2018 Act and stated that it was incorrect in relation to the definition referred to of 'woman' under the Equality Act, the guidance has now been removed and will be updated shortly to reflect the judgment,' a spokesperson said.
'The Scottish Government has already begun work on implementation. We have established a Short Life Working Group to ensure support and consistency across Government.'
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