You May Disagree but You Still Have to Comply
All these people whinging about the application of the law....
Once again in the newspapers, we have an article1 with a headline
“We won the Supreme Court sex ruling. The PM is subverting it”
The article goes on to describe how the women who pushed for the Supreme Court to define what ‘woman’ was for purposes of applying The Equality Act, are annoyed by policies, rulings and judgements that apply the law and confirm that trans women must be allowed access to women’s spaces and services, and exclusion must be rare and justified.
One comment intrigues me:
“Yet women, including the NHS nurse Sandie Peggie, are still being reprimanded by employers and employment tribunal judges for saying that males should not be in women’s toilets, changing rooms and other women’s only spaces.”
Surely employment tribunal judges’ decisions are to be respected, not maligned, by our newspapers?
Rules are Rules
At some point in life we all learn the same thing: we don’t get to ignore rules just because we disagree with them. As children we learn to respect teachers, not because they are always right, but because classrooms only work when someone sets the boundaries. At home we learn that parents guide us, even when we push back, because structure is part of care. As adults we accept that laws exist, judges interpret them, and workplaces have policies we are expected to follow.
This is how civilised societies succeed.
Since the Supreme Court ruling, there has been a flurry of activity from anti-trans groups campaigning for transgender women to be excluded from female services and spaces, groups and facilities. Their argument is that because the Supreme Court defined the meaning of ‘sex’ as it appears in the Equality Act, to mean biological sex, that this somehow proves that trans women are not women and they shouldn’t be included with other women.
Of course this is not true. By definition, a transgender woman is someone who has reassigned her gender from male to female, so of course she is a woman. The word “transgender” is simply an adjective, it is a describing word, describing the type of woman in this case. A trans woman may live as a woman, asks the world to see her as a woman, identifies as a woman, thinks and feels and sees as a woman does.
The legal analysis?
Since the Supreme Court ruling, we have had several cases which have tested out the premise as to whether trans women can lawfully be excluded from women’s spaces.
1. Sophie Cole v Royal Mail (Employment Tribunal)
Sophie Cole, a trans woman and postal worker, succeeded in claims of harassment and discrimination. The tribunal accepted that sex-based harassment can apply where a trans woman is perceived as a woman by those harassing her. Importantly, it recognised her as a female victim of sex-based harassment for Equality Act purposes, even though she was assigned male at birth.
Why it matters:
This decision directly undermines the idea that the Equality Act cannot protect trans women in sex-based claims after the Supreme Court ruling.
2. Kelly v Leonardo UK Ltd (Employment Tribunal)
Ms Kelly objected to trans colleagues using women’s toilets and claimed harassment and indirect sex discrimination. The tribunal rejected her claims, finding that Leonardo’s inclusive toilet policy did not disadvantage women and was a proportionate means of achieving a legitimate aim: inclusion and dignity for trans staff.
Why it matters:
Despite heavy gender-critical promotion, the tribunal confirmed that inclusive workplace policies are lawful and that discomfort alone does not allow for blanket exclusion.
3. Peggie v NHS Fife & Dr Beth Upton (Employment Tribunal)
Nurse Peggie brought 47 claims related to sharing workplace spaces with a trans colleague, Dr Beth Upton. She lost 43 claims, including all claims against Dr Upton. The tribunal found that Peggie herself had harassed her trans colleague and rejected the idea that merely sharing facilities with a trans woman constitutes unlawful treatment.
Why it matters:
This was a major setback for gender-critical arguments about “women’s spaces.” The tribunal did not endorse exclusion and instead upheld protections for the trans employee.
4. Allison Bailey v Stonewall & Garden Court Chambers (Employment Appeal Tribunal)
Bailey’s appeal was dismissed. While the courts reaffirmed that gender-critical beliefs can qualify as protected philosophical beliefs, they made clear that this protection does not permit discriminatory conduct toward trans people. The courts also confirmed that gender-affirming beliefs (such as “trans women are women”) remain protected under the Equality Act.
Why it matters:
This case clarified that belief protection is not a trump card and does not remove legal protection from trans people or inclusive views.
Overall legal picture
Taken together, these cases show that:
The Equality Act continues to protect trans people in practice
Inclusive policies are lawful and defensible
Tribunals have not endorsed blanket exclusion from single-sex spaces
Gender-critcal beliefs are protected, but discriminatory behaviour is not
The Supreme Court ruling has not produced the sweeping legal shift claimed by GC campaigners
The “landmark” narrative has been substantially weakened by tribunal outcomes and organisations that pre-emptively exclude trans people now face a real risk of litigation in the coming years.
Over to You
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This is part of a series examining cases, commentary and hearings concerning gender identity. If you have a case or article you’d like me to review, get in touch.