The Supreme Court ruling on the Equality Act should cause no confusion – the judgment is a model of clarity
The Supreme Court of the United Kingdom, London, UK
3 min read
Last week I had the honour of hosting an event in the House of Lords to celebrate 15 years of the Equality Act 2010.
While progress has been made towards a fairer country, our society has not stood still. At the Equality and Human Rights Commission (EHRC) we have a responsibility to advise on the effectiveness of our equality laws. Increases in public comment and litigation suggest an issue with how the legislation was being interpreted and implemented.
The judgment in one such enormously consequential case, For Women Scotland v The Scottish Ministers, arrived a week before our event. The Supreme Court ruled that for the purposes of the Equality Act ‘woman’ refers to a biological woman and ‘sex’ refers to biological sex.
It is unacceptable to question the integrity of the judiciary, or indeed the regulator, as some have done
Indisputably, the legal position has been clarified, and everyone needs to adjust to an interpretation of the law that differs from our previous understanding.
The public discourse on this topic continues to be polarised. Naturally parliamentarians will highlight constituents’ concerns. They will articulate whether they believe the law strikes the right balance between different rights. But it is unacceptable to question the integrity of the judiciary, or indeed the regulator, as some have done.
At the EHRC we uphold and enforce the Equality Act. That means incorporating the Supreme Court’s ruling into all our guidance and explaining what it means to employers, service providers and other duty-bearers who must put it into practice.
Having served as chairwoman for over four years, I’m under no illusions that this will make us universally popular. Yet our response will continue to be firmly grounded in the law. I can wholeheartedly reassure all who rely on us that every explanation of equality law from the EHRC will be accurate and authoritative. That is our job.
For almost two years before this judgment, we called for the UK government and Parliament to consider redefining ‘sex’ in the Equality Act. To identify the potential implications of this change on all those affected, to debate the issue and find the best (least discriminatory) way forward.
But the unambiguous ruling of the Supreme Court has now clarified what the law is.
I beg every legislator to read the judgment in full. I regret any uncertainty among duty bearers and the public that has been fuelled by misunderstanding and distortion, particularly across social media. The judgment is a model of clarity.
The law it sets out is effective immediately. Those with duties under the Equality Act should be following it and taking specialist legal advice where necessary.
Our aim is to submit an updated statutory Code of Practice for services for ministerial approval by the end of June. In May we will launch a public consultation to understand how the practical implications of the judgment can be reflected in the updated Code. This will include seeking views from affected stakeholders. Claims that trans people are not being listened to are simply incorrect.
Once laid, and if helpful to parliamentarians, we intend to hold informative briefings to explain our Code of Practice. The EHRC has been visible in answering questions on the consequences of the judgment and will continue to be so.
As Britain’s equality regulator, we will ensure protection for every characteristic safeguarded under the Equality Act, including sex, sexual orientation and gender reassignment. We will promote equality and tackle discrimination in all its forms.
A shared and accurate understanding of our equality laws is essential to that endeavour.
Kishwer Falkner, Baroness Falkner of Margravine, is a crossbench peer and the chairwoman of the Equality and Human Rights Commission
