Equality watchdog warns of challenges in applying legal definition of sex

The Chairwoman of the Equality and Human Rights Commission (EHRC) has warned that businesses will find it “difficult” to implement a recent legal ruling on the recent Supreme Court gender ruling.

Her comments come as protests were held in Scotland over delays in applying the ruling to public policy.

In April, the UK Supreme Court ruled that the terms “woman” and “sex” in the Equality Act 2010 refer to biological sex.

In response, the EHRC submitted an updated draft code of practice to Women and Equalities Minister Bridget Phillipson on Friday.

Baroness Kishwer Falkner, who leads the EHRC, told BBC Radio 4’s Today programme: “I think it’s going to be difficult for duty bearers, service providers, to adapt a ruling which is quite black and white into practical steps... which is why we’ve always emphasised they should take their own advice as well as adhering to our code.”

The guidance will be reviewed by ministers before being laid before Parliament for 40 days. It will then be enforceable if approved.

Baroness Falkner stated that organisations like gyms and shopping centres ought to have been complying with the law already.

Meanwhile, campaign group For Women Scotland staged a protest outside the Scottish Parliament on Thursday, criticising the Scottish Government for not updating guidance in schools and prisons.

The group claims the government has failed to align its policies with the legal definition affirmed by the court.

Scottish Conservative MSP Tess White raised the issue during First Minister’s Questions, saying: “Children have gone back to school now and teachers... are still being told to follow the SNP government's unlawful support for transgender pupils in schools guidance.”

First Minister John Swinney responded that his government accepts the judgment and is working through the legal implications.

"The government is undertaking the careful, detailed legal work that is required... and we will continue to pursue the other issues as we take forward that work,” he said.

The EHRC said its consultation on the updated code drew over 50,000 responses.

A draft version of the code, released prior to the consultation, stated that sports clubs or hospitals may request a birth certificate if there is a “genuine concern” about a person’s biological sex.

The draft also noted that trans individuals could be excluded from competitive sport “when necessary for reasons of safety or fair competition”, and suggested that some services could adapt by providing individual, lockable toilet facilities accessible to both sexes.