The Supreme Court's meaning of biological sex: Its impact on transgender fertility patients

The UK Supreme Court's recent judgment on the meaning of 'sex' in the Equality Act 2010 has generated significant attention – and a lot of misinformation.

What was the Supreme Court case about?

It started with a piece of 2018 Scottish legislation which required public boards to include 50 percent women. The campaign group For Women Scotland challenged the assertion that transgender women qualified, and ultimately the Supreme Court was asked to rule on the question: 'Is a person with a full gender recognition certificate ('GRC'), which recognises that their gender is female, a 'woman' for the purposes of the Equality Act 2010 ('EA 2010')?'

For context, the Equality Act 2010 draws together historic anti-discrimination laws and aims to safeguard vulnerable groups with specified 'protected characteristics', including 'sex' and 'gender reassignment'. Meanwhile, a GRC is a legal document issued under the Gender Recognition Act 2004 through which a transgender person changes their legal sex to their 'acquired gender' 'for all purposes'. The Supreme Court has decided that, for the purposes of the Equality Act 2010, 'women' means 'biological women' and not trans women with or without a GRC; equally, 'men' means 'biological men' and not trans men with or without a GRC.

This is not, as the headlines suggest, simply a ruling that transgender identities should be ignored, with transgender women treated as men and vice versa. In fact, the judgment is an 88-page piece of complex and nuanced statutory interpretation in relation to the Equality Act, including discussion about pregnant women's rights, the court's desire to avoid a two-tier system for transgender people with and without GRCs, and the fact that trans people would not be prejudiced from being excluded from sex-based protections because they were also separately protected via 'gender reassignment'. If this leaves you scratching your head as to what it means in the real world, you are not alone.

So what is the impact for transgender people accessing fertility services?

The Equality Act 2010 protects people against direct and indirect discrimination, victimisation, and harassment (which expressly includes violation of dignity and the creation of an intimidating, hostile, degrading, humiliating or offensive environment) on the grounds they are undergoing 'gender reassignment'. These rights are not affected by the judgment. As the court said:

'As explained more fully below, the EA 2010 seeks to reduce inequality and to protect people with protected characteristics against discrimination. Among the people whom the EA 2010 recognises as having protected characteristics are ''transsexual'' people, whose protected characteristic is gender reassignment.... This conclusion does not remove or diminish the important protections available under the EA 2010 for trans people as we have explained. To the contrary, this potentially vulnerable group remains protected.'

What about single-sex services?

The judgment impacts how the provisions in the Equality Act related to 'single sex spaces' will be applied. Firstly, it is important to note that single sex spaces are only themselves permitted if they are a proportionate means of achieving a legitimate aim. What the Supreme Court has said is that in practice transgender people with (or without) a GRC cannot rely on the protected characteristic of 'sex' to insist on accessing single-sex or separate sex services, though a trans person may still bring a claim on the basis of 'gender reassignment' if they consider their exclusion on the basis of them being trans is unlawful. What is also of note is that:

1. Service providers are not obliged to provide 'single sex' services; and
2. Should 'single sex services' be provided, a service provider will still have to be careful not to unlawfully remove access to its services on the basis of someone being transgender, especially if it leaves transgender people without access to its service at all – service providers would still need to defend such an approach.

The ruling has not removed the need for service providers to continue to balance the rights of those needing to access its service. Questions about what this means in practice remain unanswered, such as what is 'proportionate' exclusion/inclusion, and how does this all fit with the UK's obligations under international human rights law, which for decades has required the gender identity of transgender people to be respected?

This is legally complex and there will almost certainly be further litigation. Far from creating clarity, the Supreme Court judgment has generated enormous confusion.

So where do fertility services fit in, even if just for the time being?

As a whole, fertility services are not single-sex services: they are provided to people of all sexes – including intersex people – and governed by the realities of each patient's individual reproductive capabilities. In general therefore, denying fertility services to transgender people, treating them less favourably than others on the basis of 'gender reassignment', or violating their dignity (for example by persistently misgendering or misnaming them), is likely to be deemed unlawful.

What could be affected are any specific parts of fertility services which are provided on a legitimate single-sex basis, for example public toilet facilities at a fertility clinic, or a support group which is designated as being only for 'men' or 'women'. Although the Supreme Court judgment may appear to endorse transgender people accessing such services according to the sex they were assigned at birth rather than the sex in which they identify, service-providers should be cautious about making changes which might unlawfully discriminate against transgender people, violate their dignity or treat them less favourably than other patients on the basis of 'gender reassignment'. If in doubt, service-providers should seek independent legal advice and not rely on headlines to guide them on what to do.

Fertility law issues for trans people building families

There are other – separate – legal difficulties affecting trans fertility patients, particularly in relation to parental titles. In R (McConnell and YY) v Registrar General (2020) a trans man with a GRC was held to be the legal 'mother' of a child he had given birth to. Meanwhile the wording of the Human Fertilisation and Embryology Act 2008 produces bizarre outcomes for non-birth parents, with some transgender parents registered on their children's birth certificates with appropriate parental titles and some not. The law on parenthood needs to be modernised to ensure that it properly recognises children's lived realities.

However, the Supreme Court's judgment (which concerns only the Equality Act 2010 and its interaction with the Gender Recognition Act 2004) has no bearing on these issues: the court explicitly gave 'no view' on them, so the ruling has no impact on whether the law treats a transgender parent as a 'mother', 'father' or 'parent'.

Supporting transgender fertility patients

How the judgment has been interpreted (and publicly discussed) has already had a negative impact on transgender people, even though what the Supreme Court ruling means is far from clear.

In that context, the fertility sector must respond by safeguarding values of tolerance and compassion. It is a sector which is experienced in giving sensitive, respectful care to individuals, and which sees that what matters to children is not the structure of their family or the gender of their parents, but whether they are loved. As we seek to understand the Supreme Court's judgment, we must ensure that it is not implemented in an overly-simplistic way based on misunderstandings or misinformation, and that the Equality Act does what it was always intended to do – to protect vulnerable groups from discrimination, including transgender people.