“For Women Scotland” Supreme Court Ruling
(Limited Text - Ministerial Extracts only)
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Baroness Burt of Solihull (LD)
My Lords, the Statement, which we have not had the privilege of listening to in this House today, said that the ruling was not a zero-sum game. That is a phrase I have been using for quite a long time in this context, and I totally agree, but the practical repercussions of the ruling have been left to others to sort out—for women, trans people, non-binary, intersex and anyone else who may not pass muster through no fault of their own.
We need guidelines, as the noble Baroness has just mentioned, for the management of single-sex spaces and for institutions such as hospitals, the police, operators of gyms and so on. Then there are everyone else’s human rights, such as the right to privacy and to safety—if you are a trans woman being forced to use men’s toilets, for example—and not to be subjected to degrading treatment. How will the Government organise these guidelines? Can the Minister say what the timescale is? In the meantime, what is the advice to those who are now not allowed to use single-sex facilities? Are they to lose their right to public life, including as advisers to this House?
The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
My Lords, this ruling brings welcome clarity and confidence for women and service providers. Throughout my life, not just as a Minister, I have campaigned and worked for women’s rights and for the need for single-sex spaces, including, given my great age, when it was not the mainstream concern that it has become now. Like many of my sisters on these Benches, some of my earliest political campaigning was for the single-sex spaces necessary in refuges and rape crisis services to protect and support women.
The Government will therefore continue as before, working to protect single-sex spaces based on biological sex, now with the added clarity of this ruling. We will continue our wider work with commitment and compassion to protect all those who need it, right across society.
This is a Government who will support the rights of women and trans people, now and always. We will support the rights of our most vulnerable, now and always, and on that there is no change.
However, this is an important judgment, long in the making. It began in 2018 when Scottish Ministers issued guidance on the definition of a “woman” in the eyes of the Gender Representation on Public Boards (Scotland) Act 2018. That guidance stated that a “woman” in that Act bears the same meaning as in the Equality Act 2010 and included trans women with a gender recognition certificate. For Women Scotland challenged that guidance, saying that “sex” in the Equality Act means biological sex, so that a trans woman with a gender recognition certificate is a man for the purposes of the Act. The case was appealed to the Supreme Court and last week the court ruled that sex in the Equality Act means biological sex. This means that a person will be considered as their biological sex for the purposes of the Equality Act, regardless of whether they have a gender recognition certificate.
As both noble Baronesses have identified, there is now a need to ensure that this ruling is clear across a range of settings, from healthcare and prisons to sport and single-sex support groups. The Equality and Human Rights Commission, as Britain’s equality regulator, is working quickly to issue an updated statutory code of practice to reflect this judgment, and we look forward to reviewing that code of practice in due course. It will, of course, be laid in front of Parliament for approval.
On some of the other issues raised by the noble Baroness, Lady Stedman-Scott, on the Relationships and Sex Education (RSE) and Health Education and Gender Questioning Children guidance that I think she was referring to, that draft was produced just before last July’s general election and before the response to the Cass Review recommendations. We are considering that carefully—including with stakeholders and in the light of the Cass Review—with the interests of children absolutely at the heart, and we will publish that guidance soon.
On the noble Baroness’s points about the data Bill, I know that those issues have been discussed at length in this House and in the other place. The data Bill does not change the nature of sex or gender reporting in the way in which she implied.
On hospital wards, given that the last Government presided over a 2,000% increase in mixed-sex wards, the noble Baroness is right that there is a problem with the dignity available to patients in single-sex wards. Given the clarity in this guidance, NHS England is now reviewing the guidance and working quickly to make sure that that is communicated properly to the health service. This Government’s investment in the NHS will help practically to ensure that all people can have the dignity and care that they need in the NHS.
Referring to the points raised by the noble Baroness, Lady Burt, I also know and have heard from trans people, their families and friends who are worried in the wake of the Supreme Court ruling, so I want to provide reassurance here and now that trans people will continue to be protected. As a Government, we will deliver a full trans-inclusive ban on conversion practices. We will work to equalise all existing strands of hate crime and review adult gender identity services, so that all trans people get the high-quality care they deserve. The laws to protect trans people from discrimination and harassment will remain in place, and trans people will still be protected on the basis of gender reassignment, which is a protected characteristic written into Labour’s Equality Act.
The Supreme Court verdict is about clarity and coherence in the eyes of the law, but along with that verdict the judges delivered a vital reminder. This is not about the triumph of one group at the expense of another. It is not about winners or losers, and it is not about us or them. Everybody in our society deserves dignity and respect. Those are the values that define a modern and compassionate society and the values that this Government will uphold.
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, we are now moving on to 20 minutes of Back-Bench questions on the Statement. I remind all noble Lords about language and that the House expects the usual courtesies to be respected. This is Back-Bench questions, not speeches. If our questions are short, succinct and to the point, I hope we will get in at least 16 contributions from Back-Bench Members. To assist noble Lords, the first question will be from the Conservative Benches, and I will then go to the Labour Benches, then to the Liberal Democrat Benches and then to the Cross Benches. At that point, I will see where we go next.
Baroness Cash (Con)
My Lords, I thank the Minister for her statement of acceptance of the Supreme Court’s judgment and thank the Supreme Court for its courage. This issue has always been about the safety of women and girls in their single-sex spaces for which women, including the Minister, have fought long and hard for. Many of us have been involved in those campaigns over the years. Of course, compassion for all must be at the heart of it, but a significant level of violence has been displayed towards women and girls in the last few days, including violent statements sent to the noble Baroness, Lady Falkner of Margravine, in her capacity as chair of the EHRC. I invite the Minister now to join with me in condemning all gestures and statements of violence that we have seen against women and girls and to have the government support to stand against this.
Baroness Smith of Malvern (Lab)
The violence and abuse received by those women who took forward this action and by others who have taken this position is wholly unacceptable, as is the vandalism of statues that we saw over the weekend. We have already condemned that in the strongest possible terms, and we support action being taken by the Metropolitan Police on that. This is a debate that has not always been carried out in the spirit of respect, recognising the enormously sensitive and difficult issues, and I hope that from now on we will be able to do that.
Baroness Levitt (Lab)
My Lords, once again I declare my interest as the parent of a trans child. As a matter of law, the Supreme Court’s decision does not require the exclusion of trans people from all single-sex spaces; rather, it declares that, provided an organisation makes a proportionate decision, then that will not be unlawful. Does my noble friend the Minister agree that these are complicated issues, which involve balancing rights and risks? Does she also agree that what is needed now is calm consideration, on a case-by-case basis, so as to ensure that all our fellow citizens feel safe and are protected?
Baroness Smith of Malvern (Lab)
It is clear in the Supreme Court’s judgment that, for the purposes of the Equality Act, where single-sex spaces are being provided, they will be provided on the basis of biological sex. That does not, of course, prevent the provision of inclusive services where there is clarity that those services are being provided on that basis.
Baroness Ludford (LD)
My Lords, I am glad that all the main party leaders have accepted the Supreme Court judgment, including my own leader on behalf of the Liberal Democrats. I think it would be better if all leaders could express a welcome for the judgment itself, not just for the clarity it brings. I have two questions. How will the Government ensure not only that those single-sex facilities provided are kept single sex but also that service providers do not sidestep the provision of single-sex facilities by defaulting all the time to unisex provision? Secondly, do the Government agree that lessons need to be learned across the political spectrum about the need to safeguard all protected characteristics? If that of women—the majority of the population—can have been eroded in this way, what about all the other protected characteristics, including gender reassignment and sexual orientation, of course? How will all those be safeguarded?
Baroness Smith of Malvern (Lab)
On the noble Baroness’s final point, as I outlined at the beginning, protecting the most vulnerable people and protecting people on the basis of their protected characteristics remain an important element of the Equality Act and an important element of this Government’s programme and ambitions.
On how the clarity that this ruling brings will be communicated to and represented by providers, this is where the work of the Equality and Human Rights Commission—in particular, the updated statutory code of practice—will be enormously important. It will spell out the practical implications to ensure that the meaning and clarity of this judgment are delivered in practice, particularly, as the noble Baroness outlined, in relation to single-sex spaces and their protection. This does provide more clarity now on the provision of those single-sex spaces.
Baroness Bull (CB)
My Lords, as we watch Governments around the world roll back on their commitment to the rights of people who choose to live life differently, and to do so freely, safely and with dignity, I very much welcome the comments the Minister has repeated about the rights of everyone in our society to have dignity and respect.
My question is a very specific one about provisions in hospitals. I hear what the Minister says, but there are surely some spaces where there will always be a joint provision, particularly intensive care units, where it does not make sense to provide specific spaces. Could the Minister clarify that there will be nuance in how the ruling is interpreted?
Baroness Smith of Malvern (Lab)
The noble Baroness is right that there are technicalities and complications about the way healthcare is provided. There is, however, now clarity through this ruling about where the intention is that spaces should be single sex—as is the case with provisions in wards in hospitals. That should be clear.
The NHS England guidance, supported by colleagues in the Department of Health and Social Care, will want to look in detail at the very sensible point she made about the practicalities of how healthcare is provided. The important point is that people’s dignity, at a time when they are probably feeling at their most vulnerable, needs to be protected. There is more clarity that has been provided post this ruling.
Baroness Jenkin of Kennington (Con)
My Lords, in December Dr Eleanor Frances reached a significant settlement of over £116,000 with a no-confidentiality clause after constructive dismissal from the Civil Service based on her gender-critical beliefs. As a result, the Civil Service committed to revise its guidelines. In the light of the Supreme Court ruling, can the Minister update the House on how this work is going and how soon the new guidelines might be introduced?
Baroness Smith of Malvern (Lab)
Gender-critical beliefs are of course protected under the provisions of the Equality Act. I do not know where that particular guidance or those changes have got to, but I will come back to the noble Baroness with progress on that.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for her Statement but advise her not to take any advice from the party opposite. When they were in government, as this House knows, I raised again and again the question of the GMC registering doctors by their preferred gender and not by sex. This makes it very difficult for a woman to give informed consent if she does not know whether the doctor is a woman or not. Similarly, where chaperones are requested by a woman patient, they can be offered someone who is not a biological woman when clearly they want a woman. The old Government did nothing about this, so could the new Government please talk to the NHS to make sure that the sex of the doctor or the chaperone is quite clear, particularly, I am afraid, for women patients?
Baroness Smith of Malvern (Lab)
My noble friend is of course right. I think we should be judged on this on the basis of our action to protect women and girls, our action to protect the most vulnerable in our society and our action to ensure that trans rights are upheld, rather than our rhetoric. That will be the way that we will want to go forward.
My noble friend raised the very important point, as I suggested earlier, about the need for dignity and clarity for people receiving healthcare. That is the reason the NHS will now look carefully at the implications of this ruling and will update its guidance where necessary to ensure that that protection and that dignity are safeguarded.
Baroness Kramer (LD)
My Lords, I am sure that everyone in this House wants trans girls and trans women to feel welcome here, so what changes will happen to toilet facilities in the Lords? I have only been able to find one sex-neutral toilet. It is a single stall and it is inconveniently placed. Will neutral facilities, open to all, of every sex, be made available and located in places convenient for Members, staff and visitors?
Baroness Smith of Malvern (Lab)
The facilities of the House of Lords are not something for which I have responsibility. I am sure, like all other providers of services, the House will be considering carefully both this ruling and the requirement to ensure that people are able to access services that respect their dignity.
Lord Cromwell (CB)
My Lords, I have a very technical legal question. Some of the commentary I have heard on the ruling suggests that, if an organisation decides to use biological sex as a basis, it may do so, but not that it must do so. Is that correct?
Baroness Smith of Malvern (Lab)
My understanding of the ruling is that, where single-sex spaces are provided, they should be provided on the basis of biological sex. It is not, of course, the case that every service needs to be provided on the basis of single sex, but, where they are provided on that basis, it should be done on the basis of biological sex.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, we will hear from the noble Lord, Lord Cashman, next and then the noble Baroness, Lady Fox.
Baroness Smith of Malvern (Lab)
I very much hope that trans people will still believe that this is a country where they are welcome and where their rights and dignity are upheld; that is certainly the position in law. My noble friend raises an important point around hate crime. We are working with the Home Office to equalise the approach taken to hate crime to ensure that all of it, including that against trans people, is manifested as an aggravated offence in the way in which he is asking.
Baroness Fox of Buckley (Non-Afl)
My Lords, this is not party political: Front-Benchers on all sides shunned across Benches. We were shamed, shunned and shushed for simply asserting women as adult human females. But can the Minister clarify and reassure that not one trans person’s rights have been removed by the Supreme Court? Does she agree that the problem is that, as legislators, we misled trans people and institutions about the law by encouraging the myths of gender ideology or gender identity being the same as biological sex? Will she ensure that the Civil Service is now properly informed so that we, as lawmakers, no longer peddle mistruths—and, in fact, misinformation—as we have been for some time?
Baroness Smith of Malvern (Lab)
I am sure that the Civil Service, we as lawmakers and all public bodies will look carefully at this ruling and the statutory code of practice that will be brought forward by the Equality and Human Rights Commission. I add that, the last time I was asked, I referred to a woman as an adult female from this Dispatch Box—that was before the ruling.
Baroness Thornton (Lab)
My Lords, if noble Lords read the whole document, they will see that the judge recognised the sensitivity of his judgment. My noble friend the Minister has also recognised the need for compassion, respect and dignity, so I ask her whether the Government can ensure that the EHRC, in producing guidance, will give the trans communities their right to be consulted in the creation of the new guidance and information shared with the public. Can the Government ensure that the EHRC will look at this very carefully before it is announced?
Baroness Smith of Malvern (Lab)
One of the important things about the EHRC’s production of the statutory code of practice, and other forms of guidance, is that it consults as widely as possible, as my noble friend outlined. That is one of the ways that everybody will be able to be confident about their rights and the rights for trans people that remain in the law now.
Lord Moynihan (Con)
My Lords, this welcome decision has long-overdue implications for competition in sport, both nationally and internationally. Will the Minister agree that national governing bodies of sport, particularly for football and cricket, along with organisers of events such as the London Marathon events, should now revise their rules? Will she agree that Sport England should publish its advice and oversee implementation of that advice as soon as possible—certainly before the Summer Recess?
Baroness Smith of Malvern (Lab)
The integrity and fairness of sport are obviously crucial. The Equality Act actually always allowed sporting bodies, for example, to exclude trans people from gender-affected sporting competitions if necessary to secure fair competition or for the safety of their competitors. I am sure that sporting bodies will now look carefully at this ruling as they consider how to maintain that integrity and fairness.
Lord Paddick (Non-Afl)
My Lords, a Government Minister said this week that everyone should use toilets according to their sex recorded at birth. I think the Minister has said similar things this morning, in terms of single-sex spaces and biological sex. With trans men, some of whom look more of a man than I do, being told to use women’s facilities, how does this make women safer or less fearful, when a predatory male could simply claim to be a trans man?
Baroness Smith of Malvern (Lab)
It was the Supreme Court that was clear that single-sex spaces, including toilets, should be offered on the basis of biological sex, and Ministers were reflecting that ruling. This is a difficult issue, and I am sure that it will be considered by the EHRC during the production of its code of practice. Increasingly, in very many public places we see unisex toilets, which are available to everybody.
Baroness Hoey (Non-Afl)
My Lords, can the Minister give an absolute commitment that the Supreme Court judgment will apply to Northern Ireland in full, like the rest of the United Kingdom, despite Northern Ireland being left under EU equality laws?
Baroness Smith of Malvern (Lab)
I will come back to the noble Baroness about that. There are elements of this ruling and the scope of the Equality Act that we need to look at carefully, but I will come back to her.
Lord Sentamu (CB)
My Lords, I was in your Lordships’ House when the Equality Act was debated for a number of days. Lord Lester of Herne Hill and I were sparring partners, but we were very clear then that, as the Supreme Court has said, when you talk about a woman you mean this. That is very clear in the debates in this House. Now that the ruling has been clarified, there is a question that people wanted to ask, and the judges have said that this not a winning position for one group or another. How will the Government ensure that anybody who wants to comment reads that judgment clearly so that they know where it is going, and that trans people’s rights have not been taken away but remain? What will the Government do to help trans people who now feel as if they have become second-class citizens?
Baroness Smith of Malvern (Lab)
I hope I provided some reassurance in my opening comments. The noble and right reverend Lord is right that this does not remove legal protections for trans people.
Lord Parkinson of Whitley Bay (Con)
My Lords, Section 2 of the Gender Recognition Act requires somebody applying for a gender recognition certificate to have lived in the acquired gender for at least the preceding two years. In the light of this judgment, how is somebody to fulfil that statutory requirement if they are not permitted to use common public facilities that are designed for people of their acquired gender? If possessing a certificate no longer entitles them to use them, what does the Minister say are the material advantages of obtaining a gender recognition certificate at all?
Baroness Smith of Malvern (Lab)
My Lords, many of the elements of obtaining a gender recognition certificate remain in place, with the exception that is now applied by this ruling to the definition of “women” in the Equality Act. We do not believe that this undermines the rights or processes involved in the Gender Recognition Act.