7. The Supreme Court and the Equality Act's original context

 

Did the Supreme Court fail to read the Equality Act in the actual context in which it was drafted, intended, and passed at the time? The Equality Act cannot be re-imagined as something a person wants it to be 15 years later. It needs to be read as carefully as possible in terms of its actual meaning, intention, and context at the time that it was written. It may be argued persuasively that in 2010 it did not intend to restrict the term 'women' only to those born with female genitalia. The law in 2010 already made that clear: that - in law and society - trans women were to be one category of woman, and trans men were to be one category of man.

This context in law had already been cleared up for 6 years. The Gender Recognition Act of 2004 states (in Section 9, subsection 1):

"Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man.)"

And in Section 4 we read that a trans woman with a Gender certificate (GRC) is "legally recognised as a woman in English law."

Therefore, it is plain that the law and context being applied in the Equality Act of 2010 frames certified trans women as women, trans men as men, and both gender and sex has already been established in law as inclusive of those who legally transition.

The Supreme Court 15 years later needed to uphold this as context and legal fact, which makes its own super-imposition of a definition based on 'biological sex' (a term never used in the actual Equality Act) seem like a retrospective and non-contextual re-writing of the law in terms that were never envisaged or intended.

To truly understand and correctly apply the original context of the Equality Act, we need to recognise the existing 2004 law (still law today in 2026); the social developments across the world that had led to seeing gender transition as legitimate and real, relating to the core being of certain individuals; the desire to recognise trans women as women in society (and trans men as men); the wording of the Equality Act itself; the accompany Explanatory Notes released with the Act by the legislators, indicating their understanding of the Act; the first EHRC Code of Practice, drafted months after the Equality Act became law; and the views of politicians in the period after 2010, with closer understanding of what the legislators set out to do.

So what does the Equality Act say? Perhaps first, we should note what it does not say… it does not repudiate the Gender Recognition Act or the fact that trans women were women 'for all purposes'. That in itself is a significant indicator of the context and intentions of the Equality Act.

In Part 2 Section 7 of the Act, the legislators recognise that a trans person can change their sex by transition. It says a trans person is able "to undergo, is undergoing, or has undergone a process for the purpose of reassigning a person's sex by changing physiological or other attributes of sex."

So to be clear, in the original context and purpose of the Equality Act, the Act itself states that a person change sex. This had already been recognised in 2004 in law, and the Equality Act reaffirms this. It does not suggest 'trans women' remain 'men'. It recognises a variety of 'attributes' of sex (a major one of course being a person's psychological reality in the brain). The Act's stated acknowledgment was in line with the growing understanding of these issues at the time, and this context is essential to understand intention and purpose in the Act.

The fact that in the actual context of the Act as it was drafted, the understanding of the legislators was that people could transition and change sex, and that a trans woman was a woman not a man, becomes obvious in the Act's accompanying Explanatory Notes, published with the Act by the same people who drew up the law.

In its notes on Section 7 of the Act, it re-iterates in Section 41 the "process to change his or her sex" and that's repeated in Section 42. The limitation of 'sex' by the Supreme Court to only 'biological sex' as the sole attribute of sex in the Act defies the actual words and context of the Act as it is written and intended.

This is further shown in Section 43, where the legislators' view of trans women as women is made evident by the use of pronouns that reflect the sex a person has transitioned to. A trans woman is referred to as 'she' and 'her'. Likewise a person born physically female is referred to after transition as 'he'. "HIS employer cannot discriminate against HIM because of HIS absence from work." This reflects both the 2004 law still in use, and the Act's own recognition that people can change 'sex'. There are 'attributes' of sex beyond genitals and chromosomes alone, in the eyes of the law and the legislators at the time.

Sex is defined in the Act as being a man or a woman, and the Act recognises that trans women can change sex and are women, and trans men can change sex and are men. That was the law already, from 2004, and it is upheld in 2010. Neither the Act nor the accompanying Notes limit the definition of sex to 'biological sex'.

The contemporary and immediate understanding of the Act and the legislators' intents and purposes provide us with further contextual evidence of what the Equality Act was trying to do, when we read the original EHRC Code of Practice, produced just months after the Act was passed. It is quite shocking to see how the later Code being superimposed on the Act 15 years later shows the EHRC swinging from principles of social inclusion that were originally understood and intended, to blanket exclusions in a wide range of social spaces, services and associations.

It is well worth reading what the EHRC explained back then, in full knowledge of the legislators and the contexts of the time.

Once again, we see trans men referred to repeatedly as he, him, his (Section 7:2.20) and trans women referenced as she and her (Section 7:2.24) in an example provided:

"A person born physically male tells her friends she intends to reassign her sex."

Moreover, it uses the term 'transsexual man' when referring to someone born female who then transitioned (Section 11.26 and 13:58). There is a presupposition between 2004 and 2016 that sex can be changed. That is the context of the Act. The supreme court's alternative definition is retrospective.

The Code recognises that there may be certain cases where exclusion of trans women might be reasonable, but these would be exceptional cases. For example, most people might recognise that it could be compassionate to distance trans women from certain rape counselling sessions because of issues like trauma (also addressed in the Act's Explanatory Notes Section 789).

But "any exception to the prohibition of discrimination should generally be interpreted restrictively" (Section 13:2) which is to say, in very limited and exceptional circumstances. Each exceptional case should be tested for proportionality. This is because trans women are to be recognised in law as women, and their exclusion is therefore discriminatory unless exceptional and proportionate.

The general principle of inclusion of trans women because they are women is stated in (Section 13:58): "The intention is to ensure that the transsexual person is treated in a way that best meets their needs." An example follows:

"A clothes shop has separate changing areas for male and female customers to try on garments in cubicles. The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles."

As most women's toilets protect privacy in cubicles too, excluding women who happen to be trans might well be seen as disproportionate along similar lines. At the time of the Act that was, in any case the status quo and had been for years. Clearly at the time of the Equality this was viewed as appropriate and reasonable.

This is another example of how the Equality Act should be read in the context in which it was written. There was greater emphasis on inclusion of trans people in the sex they had transitioned to. As the original Code says (Section 13:59): "Trans people should normally be treated according to their acquired gender, unless there are strong reasons to the contrary." Those should be limited and exceptional.

"The denial of a service to a transsexual person should only occur in exceptional circumstances" (Section 13:60).

The EHRC itself, in its 2014 guidance for businesses - ''What Equality Law means for your business"- defined gender reassignment as "The process of changing or transitioning from one sex to another."

In the years immediately after the Equality Act, there seemed to be understanding of the importance of including trans people - some of the most marginalised and vilified people in society - and recognising that some people transitioned and to use the words of the Equality Act and its notes, people "reassigned their sex…" "changed their sex". As the 2004 Act said of trans women: "The person's sex becomes that of a woman." This was the recognised context of the Equality Act and it continued to spur inclusion rather than exclusion in the years that followed. For example:

The Women and Equalities Committee in Parliament said (Transgender Equality Report) that although there needed to be some "limited ability to exercise discretion" in exceptional and proportionate cases, "however, we are not persuaded that this discretion should apply where a trans person has been recognised for all legal purposes under the Gender Recognition Act. In many instances this is unlikely… to meet the proportionality test." In response…

The Cameron government reaffirmed the full legal and social status of those recognised as women 'for all purposes' in 2004. They addressed "the sensitive issue of separate and single-sex services, making it explicitly clear that the exception can only be used in exceptional circumstances."

It stated: "Gender dysphoria is not a mental illness" and in 'Providing Services for Transgender Customers' it upheld the inclusivity of the Equality Act stating: "A trans person should be free to select the facilities (such as toilets or changing rooms) appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender on a full-time basis they should be afforded the right to use the facilities appropriate to their acquired gender."

In the same document, with reference to the Equality Act, the government stated that "refusing to allow a woman to use female facilities because staff perceive her to be male" was discriminatory.

So we can see that through the years 2004 to 2016, within which the Equality Act was drafted, there was a context and intention of inclusion, a recognition that people could change sex to align with their gender, that trans men were men and trans women were women, and that legally and socially trans people should be included in society except in very exceptional and proportionate cases.

It may strongly be argued that the Supreme Court judgment in 2025, fifteen years later, superimposed meanings and sparked actions that the Equality Act never intended. In short, many people believe that the actual context and intent of the Act has been retrospectively altered… altered in ways that have triggered exclusion rather than inclusion, and harmed trans people's lives.