a day ago
Supreme Court's sex ruling faces legal tests – will they succeed?
Starmer's view was echoed by Equalities Minister Bridget Phillipson, who described the ruling as 'crystal clear' and stressed the need for 'services that are safe and appropriate and respect [everyone's] privacy and dignity'.
But what was billed as legal clarity has created 'greater confusion as to what this now means in practice,' Dr Alexander Maine of City Law School, University of London, told the Sunday National.
For example, guidance from the Equality and Human Rights Commission (EHRC) states that trans men must use women's toilets – from which they could be excluded for looking too much like a man. But they also cannot be left with nowhere to go.
The question of which toilets trans people can use has become a battleground (Image: Pixabay) Dr Damian Gonzalez-Salzberg, an associate professor at the University of Birmingham Law School, said the guidance 'seems to go beyond what the Supreme Court has said, or at least it might not have taken the whole picture into consideration'.
The guidance now faces multiple legal challenges, with allegations that it misreads the ruling, exceeds the law, and violates human rights. Rather than ending the debate on trans rights and single-sex spaces, it has triggered three court cases – pushing the issue back into litigation and the media spotlight.
Challenge one: Good Law Project and human rights.
THE first, a wide-reaching legal challenge, is being brought by the Good Law Project. The group has taken legal action against both the EHRC and Phillipson, the Equalities Minister, over allegations that the guidance on the Supreme Court case breaches the European Convention on Human Rights (ECHR).
Dr Maine explained that the core argument looked back to a crucial case for gender law in the UK: Goodwin 2002.
This held that the 'UK was in breach of its obligations to uphold trans people's human rights, specifically the right to marry under Article 12 [of the ECHR], and the right to a private and family life,' he said. The case led directly to the 2004 Gender Recognition Act (GRA).
Dr Maine said that, given the legalisation of gay marriage across the UK since 2002, the argument under Article 12 would no longer hold weight – but the right to privacy under Article 8 could prove crucial.
READ MORE: Kelly Given: Defining women by our biology alone is chilling
'It may be that because trans people will effectively be outed if they have to use single-sex spaces that they do not appear to adhere to – for instance, a trans woman using a male space – that might go against their right to privacy,' Dr Maine said.
Dr Gonzalez-Salzberg said Good Law Project's argument was 'very careful' and relied on European jurisprudence.
'They suggest that it was the EHRC that misunderstood the court,' he explained. 'So that's the first ground that they're proposing – your guidance is or will be in breach of human rights if implemented because you're misreading what the law is.
'Then the second argument is, OK, if you are reading this correctly, it's still a breach of human rights, actually. They focus on what the European Court of Human Rights jurisprudence has been regarding trans rights.
The European Court of Human Rights in Strasbourg'This is a very, very lengthy jurisprudence that goes from the early 1980s … That jurisprudence has got to a point which is very clear that trans people have the right to live their lives in their acquired gender, which this guidance does not seem to allow you to do when, well, you don't even know where you can pee.'
Dr Gonzalez-Salzberg further argued that there could be a case under Article 14 of the ECHR, which prohibits discrimination 'on any ground'.
He said: 'If you're taking certain measures, you are affecting this group quite heavily, and that's one of the problems with the EHRC guidance. They said, OK, if you have mixed toilets, this might be indirect discrimination against women because women might be put in a disadvantaged situation by this general policy.
'They're not saying the same regarding trans people, and that is worrying. If you have a policy that trans people cannot use their gender's toilets, well, this will put them in a disadvantaged situation.'
He added that Article 8 and Article 14 therefore represented 'two strong arguments to be made as to human rights of trans people'.
Challenge two: Liberty and the consultation period.
NINE days after the Supreme Court's ruling on sex, the EHRC issued its 'interim guidance' telling firms and public bodies how it should be interpreted. At the same time, it opened a two-week consultation period to advise on permanent guidance which is due to follow later this year.
After concerns were raised, the EHRC extended this to a six-week consultation. However, human rights group Liberty launched a legal action calling this 'wholly insufficient'.
Dr Gonzalez-Salzberg pointed to case law from the High Court, which in January ruled that an eight-week consultation period for £3 billion cuts to incapacity benefits was too short for such major changes.
The door to the UK Supreme Court in London (Image: Archive)The academic further said that the EHRC was in danger of making the same mistake as the Supreme Court and excluding the voices of those most impacted – trans people.
'If you only get six weeks, you're really restricting the possibility of people intervening," Dr Gonzalez-Salzberg said. "Especially when you consider the claims about how trans people were not really listened to in the Supreme Court's case. For the EHRC now to repeat this sort of mistake seems quite serious.'
However, on Friday the High Court dismissed Liberty's claim, with Mr Justice Swift saying: 'There is no 12-week rule. The requirements of fairness are measured in specifics and context is important.
'I am not satisfied that it is arguable that the six-week consultation period that the EHRC has chosen to use is unfair."
Challenge three: The European Court of Human Rights.
AS things stand, there is less information available about the third legal challenge against the UK's new rules on sex and gender. However, Dr Victoria McCloud, who was the first openly trans judge in the UK before stepping down in 2024, has made clear her intention to challenge the Supreme Court's decision at the European Court of Human Rights.
In the wake of the ruling in April, Dr McCloud told the BBC that she felt it breached her human rights and left her with the legal "nonsense" of being "two sexes at once".
Inset: Trans judge Dr Victoria McCloud (Image: NQ) Dr McCloud also raised concerns that trans people had not been heard during the Supreme Court's deliberations on the biological sex ruling. "Trans people were wholly excluded from this court case," she told the BBC. "I applied to be heard. Two of us did. We were refused.'
Dr Gonzalez-Salzberg said the ruling would 'have a very strong detrimental impact on trans people'.
'It's already having that and that is clearly problematic, and in many ways also because trans people were in a very definitive way excluded from properly being heard in the ruling, which makes the situation even, even worse.'
There is a clear pattern behind the three legal cases – trans people believe they were not listened to in a ruling which directly impacted their lives. Instead, they will make themselves heard in court.
