Supreme Court trans ruling being ‘misinterpreted,’ warns its first female judge

The UK’s first female Supreme Court judge has said a judgement on the Equality Act’s legal definition of a woman is being “misinterpreted.”

Former Supreme Court president, Baroness Brenda Hale of Richmond, 80, said that the April ruling, which deemed the 2010 Equality Act’s definition of a woman refers to “biological women,” is being misconstrued in the ensuing reaction and guidance.

Speaking at the Charleston literary festival in East Sussex during a live panel, Hale said she had met with doctors last week who “said there is no such thing as biological sex” while arguing that the ruling said “nothing about that.”

The April judgement, handed down by Supreme Court judge Lord Patrick Hodge, deemed that the terms women and sex outlined in the 2010 legislation referred to “biological women” and “biological sex” respectively.

The Equality Act 2010 has always allowed service providers to provide single-sex services based on biological sex alone if it’s considered a “proportional means of achieving a legitimate aim”. It does not compel services to do this or even offer it, however.

Lord Hodge reiterated the words of the Supreme Court that the ruling should not be seen “as a triumph of one or more groups in our society at the expense of another.”

Brenda Hale outside of the Supreme Court.
Brenda Hale outside of the Supreme Court. (Getty)

Commenting on the ruling during the Thursday (22 May) festival, Baroness Hale said she didn’t want to “undermine the court” by being critical of its decision, but was more than happy to criticise the government’s response.

“There’s nothing in this judgement that says you can’t have gender neutral loos, as we have here in this festival, despite the fact that there are people saying you can’t do that.”

She further argued that nowhere in the 2010 Equality Act does it “require” services to provide facilities for people “according to sex.”

She further argued that there are “plenty of things to quarrel with” on the judgement, but that her focus was on the “binary reaction that there as been to it.”

Shortly following the ruling’s publication, prime minister, Sir Keir Starmer, said he was “really pleased” at the clarification that he believe the judgemen had given, later saying he no longer believes trans women are women.

The Equality and Human Rights Commission (EHRC) has similarly begun to use the judgement as justification for interim guidance which argues trans people should be banned from all gendered toilets, including those associated with their birth sex.

Hale’s daughter, London Stock Exchange CEO Julia Hoggett, who joined her on the panel, agreed that it is the “duty of society” to foster a respectable conversation on the ruling.

Asked by an audience member whether trans women should count towards gender quotas on company boards, Hoggett, who became the first out gay woman in her position, said she finds it “heartbreaking” that the “trigger for all of this case was whether trans women should represent women in the representation of women on boards.”

She added that she would love to have “a talented trans woman sitting on a board of mine.”

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