The Supreme Court in the UK has ruled that the legal definition of gender is binary, excluding trans, intersex and nonbinary people. Activists in the US are joining those overseas in protesting the decision while a similar court case makes its way to the US Supreme Court.
On Wednesday April 16, the UK Supreme Court issued a decision on a lawsuit brought by For Women Scotland, an anti-trans group backed by JK Rowling, against the government of Scotland. The suit sought to challenge interpretations of the 2010 Equality Act, which have previously included trans women under the definition of women.
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According to the 88-page decision, all five judges decided the “concept of sex is binary, a person is either a woman or a man.”
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While the decision makes no mention of the word “biology,” Supreme Court Judge Patrick Hodge referenced bioglogy when he announced the ruling. “The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex,” he said, making no mention of the biological reality of intersex people.
At the same time, he claimed that that trans people would still be protected under the Equality Act. “But we counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another, it is not,” he said.
“The Equality Act 2010 gives transgender people protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender.”
Advocates are skeptical as to how trans people will be protected from discrimination for their “acquired gender” even as the law completely denies their gender. More importantly, the ruling clashes with international human rights standards.
“It’s certainly possible that what the Supreme Court has shown us is that the UK is not meeting its obligations under the European Convention on Human Rights,” Robin White, a discrimination and employment barrister told The Independent.
US activists warned that a similar ruling could take shape in the US, where the president has already attempted to restrict the definition of sex through executive order.
“In the United States, it provides a legal road map for those who wish to block legal equality for trans people,” Imara Jones, CEO of TransLash Media, said in a statement, per The Advocate. Jones pointed to the ongoing LW v. Skrmetti suit, which challenges Tennessee’s gender affirming care ban and is likely headed for the Supreme Court.
“My heart goes out to our trans siblings in the United Kingdom on this difficult day,” said Laurel Powell, spokesperson for the Human Rights Campaign. “Today’s ruling does not change the fact that trans women are women, that trans men are men, and that they deserve to be recognized and protected for who they are. That was true yesterday, and it will be true tomorrow.”
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