In this article, we underscore the importance of appropriately broad consultation in high-stakes decisions that carry particular social and political import. To make sense of what this might mean for healthcare practitioners and researchers, particularly in the Singaporean context, we consider the judgement and its aftermath in greater detail.

The court’s judgement

The Supreme Court’s ruling pertained to a legal challenge to the Gender Representation on Public Boards (Scotland) Act 2018, an Act of the Scottish Parliament aimed at increasing the proportion of women on public boards in Scotland.⁴

A gender-critical advocacy group, For Women Scotland, requested a review of the Scottish Parliament’s interpretation of the terms ‘man’ and ‘woman’, as stated in the UK’s Equality Act (2010). The Equality Act is an Act of the UK Parliament detailing legal protections against discrimination, or the unlawful differential treatment of (or impact on) persons on the basis of legally protected characteristics, such as gender and sexual orientation.

At issue was whether the gender recognised on a Gender Reassignment Certificate (GRC) would determine one’s sex. And if so, the “gender representation objective” to increase the representation of women in non-executive member roles on public boards in Scotland to 50% would apply to persons with GRCs recognising them as women.

A GRC is a certificate that recognises a person as having the gender they have lived as, subject to a Gender Recognition Panel’s determination. Applicants for GRCs must meet several clearly stated criteria. For instance, a person may only apply for a GRC if they are over 18 years of age; have previously been diagnosed with gender dysphoria; have been living in their affirmed gender for over two years; and intend to live in this gender for the rest of their life. Having gender affirming surgery is not a prerequisite for a GRC.

The UK Supreme Court ultimately ruled that “As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity, and to protection from risks specifically affecting women, can only be interpreted as referring to biological sex.”⁵ So persons with GRCs recognising them as women would not count as women, for the purposes of interpreting the Equality Act.

The aftermath

According to the Court, its role is not to “adjudicate on the arguments in the public domain on the meaning of gender or sex”, but to address “the meaning of the words which Parliament (had) used”. This implies that the ruling would have limited impact on matters relevant to the public. However, this has proved not to be the case. The ruling is likely to have broad impact on how authorities and organisations operate single-sex spaces and services.

For guidance following the Court’s judgement, the UK’s Equality and Human Rights Commission (EHRC) released an interim update on the judgement’s practical implications.⁶ According to the EHRC, workplaces and services open to the public must not permit trans women to use women’s bathrooms and trans men to use men’s bathrooms. However, where bathrooms are available to men and women, trans people should have access to usable bathrooms, such as in the form of mixed-sex bathrooms.

The UK Bank Barclays has imposed a ban on the use of women’s bathrooms by trans women in its buildings and the UK’s National Health Service has been warned that it must update its policy on single-sex spaces in hospitals and GP surgeries or risk facing legal action.⁷ Yet there is evidence that preventing trans persons from using bathrooms that correspond with their gender identities can be significantly harmful to their health and well-being.⁸ Supporters of the ruling argue, however, that there has been a lack of certainty around single-sex spaces for non-transgender women, and that associating with people with male anatomy in private spaces can, likewise, be detrimental to well-being.

The consequences of the Court’s decision have extended beyond single-sex spaces. Following the Court’s decision, the British Transport Police has amended their strip search policies.⁹ Prior to the judgement, anyone with a GRC would be searched by a police officer of the gender listed in their GRC. Now, interim policy details that strip searches are to be conducted on the basis of biological sex. The judgement has also impacted policy in sport. The England and Wales Cricket Board has extended a policy banning transgender women and girls from playing cricket in top tiers of competition to all levels of sanctioned competition, and the Football Association barred transgender women from participation in women’s football, as did the Scottish Football Association.¹⁰

Responses to the ruling

The EHRC’s chairwoman, Baroness Kishwer Falkner, remarked that the Court’s ruling is a “victory for common sense”, but only if one recognises that “trans people exist, they have rights and their rights must be respected”.¹¹ However,, members of the UK’s cultural sector jointly signed an open letter stating that the EHRC’s guidance “overlooks the need to protect trans, non-binary and intersex people from discrimination”, and the former leader of the Scottish National Party, Nicola Sturgeon, questioned the EHRC’s guidance, worrying that it would make the lives of trans people “almost unliveable”.¹²

One should expect detailed analysis to follow. At least preliminarily, some have considered whether the Court’s ruling upholds rights protections central to anti-discrimination law. In a blog post for the UK’s Constitutional Law Association, Crash Wigley argued that the Court had failed to address the human rights consequences likely to follow the judgement, and that an interpretation of ‘sex’ as ‘biological’ (i.e., immutable), rather than ‘certificated’ (i.e., as reflected on a GRC), is inconsistent with the rights of trans people, as outlined in the European Convention on Human Rights.¹³

In response, equality law expert Michael Foran has argued that the Court had recognised “the importance of both biological sex and gender reassignment, (and) concluded that each is protected separately under the Equality Act”.¹⁴ According to the Court, a ‘certificated’ interpretation of sex would render other provisions in the Equality Act “incoherent or as giving rise to absurdity”. Advocacy groups aimed at promoting the rights of lesbians, including Scottish Lesbians and the LGB Alliance, argued that sexual minorities would not be regarded as distinct groups on the basis of a ‘certificated’ interpretation of sex, and that rights for sexual minorities would then be stripped away.¹⁵

What this means for Singapore

Recent landmark developments in Singapore reflect an expanding effort to prevent and mitigate wrongful discrimination. As we set out to further develop and implement anti-discrimination laws—such as in the form of Workplace Fairness Legislation and legislation to prevent genetic discrimination in employment and healthcare—it is pivotal that we learn from experiences elsewhere.

As fallout from the UK Supreme Court’s ruling shows, consultation is necessary for robust and acceptable legislation. Challenges to the ruling have focused on the lack of consultation with trans persons. Dr Victoria McCloud, a former judge in the British High Court, seeks to challenge the ruling at the European Court of Human Rights, stating that “Trans people were wholly excluded from (the) court case.”¹⁶ Applications for intervention from two trans legal experts, including McCloud, were denied by the Court without a clear statement of justification. So an important normative and legal question to attend to is whether judgements about anti-discrimination law made without appropriately broad consultation are procedurally just.

In the interim, the challenge for practitioners—not just in the UK but in Singapore too—is how best to adjust one’s personal and professional judgements in a time of shifting public opinion, norms, and regulation. There is an open question about how to approach medical care, treatment, and service where there are competing interests in ways that are ethical, in addition to, or perhaps even opposed to, lawfully. This is a challenging matter that must be given substantial consideration. Ethically, medical practitioners should put the best interests of their patients first. And if the role of a Court that decides on anti-discrimination law is indeed limited to statutory interpretation, then one lesson to learn is that the meaning of ‘sex’ and ‘gender’ is not fixed, but contestable. If so, discrimination on the basis of sex is still an open matter for us to come to understand.

This article was first published in the Journal of Medical Ethics Forum.