Despite what some people who should know better are saying, the complex and nuanced consequences of the Supreme Court’s judgment on 18th April were never going to be as simple as blanket updating policies.
Clearly policies where there are single sex spaces will now need to be reviewed and take into account the judgment. That is not in doubt. However, it will require a great deal of thought and consultation on the part of organisations to get this right whilst balancing the rights and dignity of all affected groups. There are numerous risks for organisations to mitigate what is known in policy development as ‘unintended consequences’.
Organisations that only respond to the ruling on the definition of ‘woman’ may end up not fully meeting their duties to prevent discrimination, harassment, and victimisation under the ‘gender reassignment’ characteristic. The Supreme Court itself emphasised that these protections still apply in law and this was not a victory for one group over another when handing down its judgment, but these aspects are being largely ignored.
There is also a risk of increasing cases of ‘Discrimination by Perception’, which is prohibited under the Equality Act 2010. This would be where some women are questioned about their gender and denied access because they are perceived to ‘not look feminine enough’.
A recent high profile example of this type of discrimination was the unedifying treatment of female boxer Imane Khelif at the Paris Olympics 2024. In sports situations, competitors tend to be subject to blood tests for fitness and anti-doping purposes so sex chromosomes may be apparent and unequivocal. Although ethical issues remain and those running sports organisations should be mindful that biometric data used for identification purposes, biological, and health data have enhanced protections under UKGDPR.
However, in most everyday settings including most amateur and children’s sports, and in workplaces, testing is unlikely and impractical. I sincerely hope we are not going down the road of forcing people to have blood (and possibly other tests) on their anatomy to prove their identity. We all know where that starts and ends.
At the heart of all this are people who have done nothing wrong and who, in a civilised society, should be as free to get on with their lives as everyone else.