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The UK Supreme Court judgment on April 16th confirmed that the words ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010 refer to biology, not to ‘certificated sex.’ In other words, a male person with a Gender Recognition Certificate (GRC) saying he is female is not counted as female for the purposes of the Equality Act (EA2010). The judgment also clarifies that the protected characteristic ‘sexual orientation’ is based on biological sex. A lesbian is protected as a same-sex attracted woman, and not as a heterosexual male who is in possession of a certificate.

The For Women Scotland v the Scottish government case at the Supreme Court was about whether possession of a GRC changes a person’s sex for the purposes of the Equality Act. As a GRC can only be issued to those over the age of 18 it was not about children.

So does the Supreme Court judgment have any relevance for children in schools? It shouldn’t be necessary to use it, because separate provision of male and female toilets is already a statutory requirement in schools. Operation of single-sex services on the basis of self-identification of sex was never lawful anyway, and children don’t have a GRC.

Children’s privacy and dignity and the safeguarding of girls requires that schools separate the sexes in toilets, changing-rooms, overnight accommodation and sports. The question of GRCs has never arisen, so there has been no confusion there.

But of course many schools haven’t been doing this. If they have followed Stonewall (or another trans or LGBT lobby group) guidance they have been operating policy on the basis of ‘gender identity’, not ‘sex.’

So yes, the UKSC judgment is relevant for schools and this has been confirmed by the Equality and Human Rights Commission (EHRC) in a brief Interim update. The critical point of the judgment is that it clarifies the meaning of ‘sex’ in the EA 2010. It means (and has always meant) biological sex, not ‘gender identity.’

The Supreme Court judgment further clarifies that a single-sex service for females (in line with the exemptions set out in the EA 2010) must exclude ALL males, including those with the protected characteristic of gender reassignment:

In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances. (211)

It says that anything other than a biological meaning of sex in the EA 2010

would undermine the very considerations of privacy and decency between the sexes both in the availability of communal sleeping accommodation and in the use of sanitary facilities which the legislation plainly intended to provide for. (224)

In other words, implementing ‘single-sex’ services on the basis of anything other than being male or being female cancels out the whole purpose of single-sex provision as intended by EA2010.

It clarifies that the range of ‘gender identities’ that children are encouraged to adopt, such as ‘non-binary’, are not covered in Equality Act provisions:

The definition of sex in the EA 2010 makes clear that the concept of sex is binary, a person is either a woman or a man. (171)

And that the protected characteristic ‘gender reassignment’ does not change a person’s legal status to the opposite sex:

But the fact that section 7 refers to a process for reassigning sex does not lead to the conclusion that such a process results in a change in the protected characteristic of sex under the EA 2010. (200)

It also clarifies the legal definition that protects gay and lesbian people:

The protected characteristic of sexual orientation … is framed by reference to orientation towards persons of the same sex, the opposite sex, or either sex. Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate. (204)

In light of all the publicised misunderstandings about what the judgment means, the EHRC has now published an Interim Update This is what it says about schools:

• Schools must provide separate single-sex toilets for boys and girls over the age of 8. It is also compulsory for them to provide single-sex changing facilities for boys and girls over the age of 11.

• Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required. 

Stonewall schools have been operating policies based on ‘gender identity’ (not a protected characteristic) that erase ‘sex’ (which is) for ten years. This is, and always has been, unlawful.

Schools cannot operate safely and fairly in relation to Equality Act protections on the basis of pretending not to know what sex a child is.

Schools must now, as a matter of urgency, review and amend unlawful policies in light of the judgment.

What this means for schools

Schools MUST provide single-sex facilities based on children being either male or female

• For the privacy, comfort and dignity of all children and for the safety of girls when using toilet and washing facilities, changing-rooms and sleeping accommodation.

Single-sex facilities must exclude ALL members of the opposite sex, otherwise they are not single-sex

• A school cannot legally justify including boys with the protected characteristic of gender reassignment in facilities for girls, while excluding boys without this protected characteristic. All male pupils must be excluded from facilities for females, whatever other protected characteristic they may have.

Schools can still provide a unisex option; for safeguarding reasons this must be a single-use, fully enclosed toilet with washbasin

• This does not mean open-plan toilets with shared washbasins, which do not protect children’s right to privacy from the opposite sex when using toilet and washing facilities.

‘Gender neutral’ provision is still lawful for services open to the public but it could be indirect sex discrimination against women and girls if the only provision is mixed-sex

• Schools cannot change their facilities to ‘gender neutral’ as a way of getting around the judgment. Single-sex provision is a statutory requirement in schools.

Children who self-identify as ‘transgender’ are still protected from discrimination and harassment in the same way as any other protected group

• Trans-identifying people have not lost any rights, they were given the rights of the opposite sex which they were not entitled to. It was girls who lost their established Equality Act rights and these rights have now been restored. The Supreme Court judgment has simply clarified what the law has always been.

The need for single-sex spaces has not magically gone away over the past decade, it has immeasurably increased

• Women-only spaces were recognised as a need before the days of smart phones, disguised cameras and an internet to share images of women and girls. Now they are vital.

How can schools manage the change?

Schools must be aware that all separation of the sexes for reasons of safeguarding, inclusion and equality must be based on biological sex, not ‘gender identity’

• If a service is provided for girls only, this must mean only children who were born female. This should apply to single-sex schools and girls’ associations such as Girlguiding. Sport is listed as an exception in EA2010 as a ‘gender-affected activity’ that can be separated on the basis of sex if one group would have advantage over another, for the protection of safety and fairness.

Schools must collect data on pupils according to their biological sex, not their ‘gender identity’

• Data collection is the foundation on which rights to equality and non-discrimination is built; it is not possible to protect girls’ Equality Act rights as a sex without accurate data on sex.

Schools must not stoke feelings of victimisation among trans-identified children, nor feelings of anger and blame among pupils who have been encouraged to be ‘trans allies’ and believe that the judgment is ‘transphobic.’

• The Supreme Court judgment has led to misleading and false information being spread by bad actors, and a surge of protest and violent misogyny being openly expressed. Schools have a responsibility to give children accurate information and calm explanation of the law and how it protects the rights of trans people, women and girls and lesbian, gay and bisexual people. Schools must be sensitive to the feelings of children who may experience the judgment as their rights being taken away.

• Schools must not give children false expectations that their self-identity will be accepted or acknowledged as reality outside the school setting. Children benefit when school rules are clear and teachers are calm and confident in explaining them where necessary. It is especially important when children are hearing the message that this judgment will destroy them that teachers, while being understanding, express confidence and trust in their resilience.

• Schools must also recognise that girls may be afraid to voice their relief that their single-sex rights have been re-established in law. Girls may be vulnerable to bullying and intimidation if they dare to welcome the judgment and they may either remain silent, or go along with the crowd. Schools must do much more to educate children on why single-sex facilities and sports are important to protect the rights of everyone, and why women and girls need these spaces.

‘Social transition’ is not possible in schools which must operate fairly for all children on the basis of sex

• A child who has the protected characteristic ‘gender reassignment’ has not legally changed their sex and treating them as if they have may interfere with their rights and the rights of other children. All children benefit from being grounded in reality and there is no shame in understanding that sex cannot actually be changed and that it is safe to acknowledge this. Children benefit from honesty, this does not mean that teachers cannot also show compassion.

• Trans-identified children have the same right as any other child to explore and express their identities as long as this does not interfere with the rights of other groups. Schools should be tolerant of this without teachers joining in or singling out this one group for validation, celebration and the changing of whole-school policies.

Schools must be aware of misleading guidance that asserts that ‘inclusion’ overrides the law and that this means inclusion of boys into services provided for girls

• The Equality Act does not prioritise ‘inclusion’ over ‘exclusion’ as a means of ensuring equality and non-discrimination. In some circumstances ‘exclusion’ is necessary to ensure inclusion and equal opportunity for girls who may self-exclude if this provision is not available, for example in facilities or sports.

There have already been misleading interpretations of the judgment published as guidance for schools and in SchoolsWeek

• Schools should be careful to obtain legal information from credible sources. A simple guide to the judgment has been published by Akua Reindorf KC, a commissioner for the Equality and Human Rights Commission. A clear summary and practical advice has been published by Sex Matters, the Human Rights organisation who intervened in the case.

Schools must ditch all policies put in place following ‘advice’ from Stonewall and other trans and LGBT lobby groups*

• Their guidance is, and always has been, unlawful. It has undermined safeguarding and caused immense harm to children. Schools must revert to reality and help children to understand the difference between fact and belief. Schools can start by replacing the word ‘gender’ with the word ‘sex’ in all policies.

How did we get here?

The Equality Act

The Equality Act doesn’t give people extra rights, it is an anti-discrimination Act that simply

“protects children, young people and adults against discrimination, harassment and victimisation in relation to housing, education, clubs, the provision of services and work.”

(from NSPCC Children and the Law https://learning.nspcc.org.uk/child-protection-system/children-the-law#skip-to-content)

Equality and Human Rights laws can be a blunt instrument when it comes to the protection and safeguarding of children. These laws apply to people, they do not distinguish between adults and children, and this fact has been used to create misunderstanding around safeguarding duties.

A child is defined by law as any person under the age of 18. The Equality Act groups children together with adults in terms of the protected characteristic categories, thus the ‘sexual orientation’ and ‘gender reassignment’ protected characteristics can also be applied to children. This may be justified by the fact that protection also applies to someone if they are perceived to be gay or trans although it raises the question of whether adults should be making these assumptions about children who have not yet developed sexually or understand what sex is, let alone whether it can be changed.

It is important for schools to understand their duties not to discriminate against different groups in order to act within existing law. However, external lobby groups have specifically used the Equality Act to give extra rights to trans-identified children by taking away existing rights for girls, and to obscure the fact that a protected characteristic does not mean treating a child as an adult.

Lobby groups have used the Equality Act as a tool to dismantle necessary safeguarding frameworks in schools.

Stonewall

Stonewall has worked since 2015 to embed the concept of ‘gender identity’ into schools, and it has specifically used the Equality Act to lend authority to its guidance on policy. The following examples are from An Introduction to Supporting LGBT Children and Young People: A guide for schools, colleges and settings:

• Under the Equality Act a trans child or young person can use the toilets and changing rooms that match their gender. Under the Act, a school can only prevent a trans child or young person from using the facilities matching their gender if they can demonstrate that doing so is a ‘proportionate means of achieving a legitimate aim’, which is a high legal bar to clear. [p. 46]

• Under the Equality Act 2010, a trans child or young person is also able to attend a single-sex school, college or setting that matches their gender identity (unless the school, college or setting demonstrates that denying them access is a ‘proportionate means to achieve a legitimate aim’, which is a high legal bar to clear). This means that a trans boy can attend a boys’ school, and a trans girl can attend a girls’ school. [p. 47]

Sometimes it’s more subtle; advice is followed by the implication that not to follow it would be discrimination. For example:

• RESIDENTIAL OR BOARDING SETTINGS Ensure that trans children and young people are able to access residential or boarding accommodation they feel most comfortable in, which could be accommodation aligned with their gender identity, or gender-neutral or private space.

Is followed by:

• children and young people should not be discriminated against based on the protected characteristics set out in the Equality Act (2010) [p. 46]

Stonewall has even used the Equality Act to imply that ‘transitioning’ a child is a legal responsibility:

• All schools, colleges and settings (including single-sex schools) have a responsibility to support trans children or young people through a transition. You must enable them to remain and participate fully at their school, college or setting, in line with the provisions in the Equality Act (2010). [p. 43]

The Equality Act is not, and never was, a legal mandate for the ‘gender affirmative’ approach. This is not the business of Equality law.

Stonewall also advises that the Equality Act can be used as a stick with which to beat parents who express any concerns:

• WHAT IF A PARENT, CARER OR COMMUNITY MEMBER OBJECTS TO OUR LGBT-INCLUSIVE APPROACH? Share your anti-bullying and equality policy, explain your obligations under the Equality Act (2010) and make reference to Ofsted’s requirements. [p. 47]

Teachers are not experts in Equality law (and should not be expected to be). Schools are generally willing to ensure they operate non-discriminatory policies (as they should be) so any mention of discrimination from an organisation they trust is likely to frighten them into submission. Stonewall found a very effective way to get schools to follow their advice.

If schools (or parents) wanted to double-check Stonewall’s advice, one place to go would surely be the UK’s established child safeguarding charity, the NSPCC.

NSPCC

A good place to look would be the Safeguarding pages on the NSPCC’s website, specifically the section headed The Equality Act 2010. Under this section they will find a relevant link: Find out more about safeguarding LGBTQ+ children and young people, which takes you to a page proclaiming ‘best practice for protecting LGBTQ+ children and young people.’

There is no such thing as an ‘LGBTQ+ child.’ LGBTQ+ is not a protected characteristic, it is a grouping that collapses three protected characteristics – sex, sexual orientation and gender reassignment – into one homogenous group founded on the concept of ‘gender identity’ (which is also not a protected characteristic). We have recently written about the dangers of encouraging children to identify themselves within this group.

The NSPCC goes on to casually remove safeguarding provision for girls:

For example, you should consider how you can support transgender and non-binary children and young people to wear the clothes (e.g uniform or sports kit) and use the toilets and changing rooms that they feel comfortable with.

The NSPCC links to Stonewall in several places on its website pages about safeguarding and children’s rights. An NSPCC whistleblower quit the charity last year saying

“I thought I can’t work for this charity any more. It’s been completely captured by Stonewall.”

(NSPCC whistleblower quits charity over trans grooming row, Telegraph https://archive.is/iL0jp)

According to a spokesperson the NSPCC had no formal partnership with Stonewall, but did engage with them “to hear from communities that are often under-represented”. The ‘engagement’ with Stonewall must have been quite extensive as their web pages could have been copied and pasted from Stonewall guidance.

Teachers and parents looking for more information would find that every other organisation had also been trained by either Stonewall, Gendered Intelligence or Mermaids. Which authority on Equality law could teachers or parents rely on to provide accurate legal information? Perhaps the regulator.

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) is the regulator; their job is to explain the Equality Act to the rest of us in simple terms, how it works and how to apply it. While Stonewall and others were busy providing schools guidance from 2015, where was the EHRC? There was very little on this subject in their Technical Guidance for Schools at the time.

When we asked to be stakeholders in the EHRC’s own proposed schools guidance in 2017, they had consulted only with trans lobby groups. We met with them, submitted a briefing and followed up with emails over a period of years before we finally saw a copy of their draft guidance in 2021. It was essentially a copy of Stonewall guidance. They had failed to consider a single point we had made over the years. We have evidence that the EHRC was engaging with Mermaids and advising individual schools to affirm pupils and use the Allsorts trans inclusion schools toolkit.

At that time the chair of EHRC was a former Stonewall chair, David Isaac. The EHRC itself was a Stonewall Diversity Champion.

It was only in December 2020 when Baroness Kishwer Falkner was appointed new chair of the EHRC that the regulator began to remove itself from Stonewall’s influence and do its job of protecting everyone’s rights under the Equality Act 2010. In May 2021 the EHRC left the Stonewall Diversity Champions scheme. In 2024 improvements were made to the Technical Guidance for Schools, including the requirement that schools provide single-sex toilet and changing-room facilities.

Now the UK Supreme Court judgment has clarified that sex means sex, the EHRC is currently updating its Code of Practice and we hope they will further update the guidance for schools to ensure that teachers understand that sex really does mean sex. Until this new guidance is finalised, the EHRC has said:

“In the meantime however, the law is as set out in the Supreme Court’s very readable judgment and is effective immediately.  

“Those with duties under the Equality Act must comply with the law and should be urgently reviewing what changes need to be made to their existing policies and practices.”

EHRC Interim Guidance, just published, has already clarified what the judgment means for single-sex provision of toilets and changing-rooms in schools (see above).

Our thoughts

Over the past decade there has been universal ideological capture of organisations and public bodies that has eroded the rights of women and girls and lesbian and gay people, and undermined the safeguarding of children. The capture has gone all the way up to government, the regulator, and the UK’s child protection charity.

Through extremist ‘gender affirmation’ policies schools have encouraged a school-to-clinic pipeline for vulnerable children, failed to uphold the rights of girls, and created a climate of deception and secrecy in schools. Schools have forgotten basic principles of safeguarding, including working together with parents.

The restoration of rights and safeguarding frameworks is now an urgent priority but it is too late to repair the damage already done to individual children and to the families that have been broken apart by an extremist lobby that was allowed into schools.

The true nature of this authoritarian movement has been exposed by the reaction to the judgment. We expected a backlash, as there was to the Cass Review, and it is well underway.

Prominent trans activists have called the judgment ‘evil’ and there have been protests around the country, including intimidation and incitement of violence against women. Transgender organisations have stoked fear and confusion about the judgment. There have been outpourings of support for the ‘transgender community’ from organisations, including Disability Rights UK, YoungMindsUK and the British Association for Counselling and Psychotherapy, BACP, who we can’t imagine would have expressed such solidarity with women and girls if the judgment had gone the other way.

The overwhelming reaction from activists and allies has been outrage and resistance, including a very nasty undercurrent of misogyny that has already broken the surface in blatantly advertised threats against women’s lives. Misinformation has been widely disseminated, including that trans people have lost rights, and the implication has been that this is women’s fault.

Schools must be aware that children will be hearing the alarmist rhetoric that has been spreading since the judgment was announced. Children who identify as trans must be protected from this as much as possible in schools, and looking after the needs of these children will require sensitivity and empathy. They have been cruelly misled and continue to be so by adult trans activists and allies who should know better.

Schools must recognise that the one-sided messaging of victimisation and blame throughout many media and social media outlets may put girls at heightened risk of bullying and intimidation if they fail to loudly oppose the restoration of their rights. A generation of girls has grown up with the belief that discrimination against them is ‘kind.’ Schools have failed in their duty to teach girls that they have sex-based protections in law, so there will be many who truly believe the judgment is ‘cruel.’ The injustice done to girls must be acknowledged.

There will also be girls who are afraid to speak up in such a climate. Along with the protection of children who identify as transgender, schools must not forget that they also have a duty to protect the girls who are grateful to get back their sex-based rights.

* We have compiled a list of external providers who are in breach of the Supreme Court judgement. Download the pdf here. This is a working document that will be updated.