Gender reassignment: A 'protected characteristic' or the butt of UK law?

INDI VARUTTI examines the uncertainties, fear and isolation caused by a Supreme Court ruling on gender equality

‘Is the gender you identify with the same as your sex registered at birth?’ Usually followed up with the options ‘yes’, ‘no’, or ‘prefer not to say’, perhaps ‘none of your business’ better captures the frustration many feel when confronted with this often superfluous question (see here for instance).

Despite gender reassignment being a protected characteristic (characteristics which legally shield individuals from discrimination, harassment, and victimisation) under the Equality Act 2010, owing to a recent ruling by the Supreme Court, service providers now have the legal right to exclude individuals from single sex spaces based on perceived gender identity (someone’s assumption of an individual's gender). As we do not demand proof of disability outside an accessible toilet, nor interrogate parents using a ‘baby’ changing room, what right do we have to police single sex bathrooms based on perceived gender identity? Alas, the right prescribed by law.

      Supreme Court ruling

 In April 2025, the UK Supreme Court ruled that when dealing with equality law, the definition of a woman will be based on ‘biological sex’ (see Holt & Melley, 22 May 2026, BBC). It was ruled unanimously that under the 2010 Equality Act, ‘sex is binary, meaning someone is either male or female’, completely disregarding transgender people. As such, a person born male but now identifying as female is no longer permissible in spaces or services designated for ‘women-only’. Lawyer and former Judge Dr Victoria McCloud has since submitted a legal challenge to the European Court of Human Rights on the basis that the rights of trans people were not considered in the ruling.

Many women’s groups across the UK advocated for legal clarification, saying it was needed ‘for reasons of privacy, safety, dignity and discrimination.’ (Holt and Melley, 19 April 2025, BBC). Yet the ruling does not take into account the privacy, safety or dignity of transgender women. It discriminates against their right to use secure spaces exclusive to the gender with which they identify. Ironically, as the ruling encourages ‘unisex facilities’, it is difficult to determine how the exclusivity that women’s groups sought has been accomplished – in many cases, men, women and trans people will be required to use the same space, i.e., gender neutral toilets. However, it has emboldened stricter exclusions within such groups. 

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For instance, Girlguiding has stated ‘transgender girls must leave the organisation by September 2026’. Similarly, the Women’s Institute will ‘no longer offer membership to transgender women from April 2026’. Thankfully, their assessment of ‘biological gender’ is not invasive and simply relies on self-certification during the application process, confirming their eligibility as a registered female at birth. As a ‘biological’ female, I am unsure what qualifications I gained at birth that a trans woman apparently does not possess or why such discrimination (‘the action of perceiving, noting, or making a distinction between things’) has been allowed not only to stand but to be bolstered by our legal system.

Confusion, not clarification

In fact, the ‘clarification’ of sex concerning equality law has created confusion rather than clarity in most cases. For example, there is little to no advice on how to challenge someone’s right to use a single sex space, or what kind of ‘proof’ of sex would be reasonable. Usually, we rely on documents such as a person’s driving licence or passport to resolve questions of identity, i.e., where someone is of legal drinking age. Yet, such a ‘fail-safe’ falls short in this regard, as trans people have a legal route to change their sex on all documentation.

Under the Gender Recognition Act 2004, those transitioning can apply for a Gender Recognition Certificate (GRC); as such, their ‘birth, marriage and death certificates will record their chosen gender identity, not their biological sex’. Of course, there are several criteria (i.e., have a gender dysphoria diagnosis, be over 18, provide evidence they have been living in their acquired gender full-time for at least two years, etc.) applicants must first meet to obtain such a certificate. Such criteria fail to ‘offer legal recognition to trans people aged under 18’, depend on ‘a panel of strangers’ deciding one’s gender for them and, perhaps most primitive, require ‘married trans people to get permission from their spouse’.

Scotland's Gender Reform Recognition Bill

Ironically, since 1870, when the Married Women’s Property Act came into effect, women have legally owned any money they earned and have been allowed to inherit property from their husbands. In contrast, trans women are not able to decide their own gender without first seeking permission. While many UK laws make obtaining legal recognition as transgender arduous, in 2022 Scotland attempted to de-medicalise the process of changing one’s legal sex by passing the Gender Recognition Reform (Scotland) Bill; however, the Westminster Government blocked this ‘under section 35 of the Scotland Act 1998’ (the UK Government's Secretary of State for Scotland has the power to veto a bill passed by the Scottish Parliament). Remarkably, as the law currently stands, a GRC is not needed for a person to update the sex stated on their ‘driving licence, passport or medical records’. For me, a key question that necessitates an urgent answer is: if challenged, how does one prove their ‘biological sex’ when their ID documentation displays their reassigned gender?

Challenging binary definitions

Redefining ‘sex’ as binary under equality law should not initiate further denial of rights like the ability to update legal identification, but contradictory laws leave a confused nation. Under the Equality Act 2010, there are nine protected characteristics (age, disability, religion or belief, race, gender reassignment, marriage and civil partnership, pregnancy and maternity, sex, sexual orientation), and the Act essentially states ‘it is against the law to discriminate against someone because of a protected characteristic’. Gender reassignment is one of these characteristics, defined as: ‘Where a person undergoes, or proposes to undergo, a process for the purpose of reassigning their sex,’ yet under this Act, sex is binary – you are either male or female. By disregarding the existence of transgender people in its oversimplified definition of ‘sex’, even the Equality Act itself discriminates against gender reassignment.

Sadly, the discrepancies do not stop there. Under Section 149 of the Equality Act 2010, the Public Sector Equality Duty is a legal obligation requiring ‘public authorities to consciously consider’ how policies and decisions affect individuals with protected characteristics. In other words, they must ‘eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act’ and ‘advance equality of opportunity’ between those with and without a protected characteristic. It seems impossible to comply with such requirements when transgender people can now be refused access to a single sex space that both they and their identity documents align with.

Respect, dignity, equality and human rights

Similarly, the EHRC (The Equality and Human Rights Commission), which is a statutory body (an organisation created by an Act of Parliament or law with legal powers to enforce rules and give expert advice to the government), is required to encourage and support the development of a society in which:

• people's ability to achieve their potential is not limited by prejudice or discrimination

• there is respect for and protection of each individual's human rights

• there is respect for the dignity and worth of each individual

• each individual has an equal opportunity to participate in society

• there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.

Arguably, the key words here are ‘respect’, ‘dignity’, ‘equality’, and ‘human rights’, which carry connotations of moral duty, social justice, fairness, and fundamental democratic values. Surely, preventing transgender people from entering a single sex space with which they identify distinctly opposes such law.

Sanitation (the safe management, treatment, and disposal of waste, which includes toilets) is ‘recognised by the United Nations as a human right that entitles everyone to have physical (…) access to sanitation in all spheres of life, that is safe, (…), and that provides privacy and ensures dignity’ (World Health Organisation, 2021). Again, the new ruling assures all of this for people who identify with their assigned sex (the sex they were registered with at birth) yet completely disregards transgender people and their rights and worth under these laws.

Visibility is legally irrelevant

This is further evidenced when comparing laws relating to trans people and those with disabilities. According to the Equality and Human Rights Commission's retailer guidance, ‘nobody — not staff, not another customer — is entitled to demand’ that you prove you have a disability when using a disabled space in public. In fact, ‘visibility is legally irrelevant’, nor is there any ‘legal requirement to carry proof of disability to use an accessible toilet’. The key is that a person can ask, but there is no obligation to answer, and if refused access due to non-disclosure of a diagnosis, this risks being unlawful discrimination, as long as that person is covered by the Equality Act. Nevertheless, it seems new guidance is encouraging transgender people to be stopped, asked to provide proof and refused access to single sex spaces – assuming the new ruling did not actually intend the UK to start implementing invasive searches on entry to such spaces for all.

Anti-transgender hate crimes

       As a protected characteristic, a criminal offence committed against anyone covered by the Equality Act is considered a ‘hate crime’ (a criminal act, i.e., assault, vandalism, harassment, or property damage, which is perceived by the victim or onlooker to be motivated by prejudice toward a protected characteristic). According to Stonewall, between 2020/1 and 2024/5, the Police recorded ‘hate crimes based on transgender identity increased by 50%’. Similarly, Galop (an LGBTQ+ hate crime charity) ‘saw a 60% increase in LGBTQ+ hate crime victims coming to them for support in 2024’. Shockingly, ‘the Government's National LGBT Survey showed fewer than one in ten LGBTQ+ people report hate crimes’, yet Galop’s research in 2021 ‘showed this figure as only one in eight ’, with many people reporting they felt the ‘Police would not ‘do anything’’. Therefore, unsurprisingly, more recent figures (year ending March 2025) published by the UK government, show a decrease in ‘transgender hate crimes by 11% ’, and it is not difficult to understand why many transgender people feel nothing would be done whether they report the crime or not.

Before April this year (2026), criminal acts against transgender people were charged as a standard criminal offence, meaning lower maximum penalties and only tried at the Magistrates Court (a lower-level court where the vast majority of criminal cases begin and end without a jury). However, due to an amendment to the Crime and Policing Bill, crimes against LGBTQ+ people are now tried as an aggravated offence, leading to much harsher penalties and, if necessary, can be tried in the Crown Court (the higher criminal court where serious criminal cases are tried by a judge and jury).

       While this is a huge step forward for the LGBTQ+ community, it highlights the injustice served by the decision of the Supreme Court. In reality, a transgender woman could take a male assailant to court and feel assured that the penalty will be in keeping with the crime committed, yet during recess (i.e., stop for lunch) she is expected to share the same single sex toilet as her assailant.

Heartstopper Forever speech

The feeling of uncertainty, fear and isolation caused by such laws was passionately articulated in the Netflix 2026 Heartstopper Forever film. It served as a series finale to the Netflix show – a British coming-of-age romantic comedy which explored sexuality, gender identity and mental health, especially within the LGBTQ+ community. Actress Yasmin Finney played the character Elle Argent in both the series and film, a young transgender woman finding her place in the world; however, her eloquent post-Pride speech depicted how difficult that can truly be:

‘The world hates me right now. The government is taking away my rights and everything we fought for. If I was a few years younger, I wouldn’t even been able to take hormone blockers legally because they banned them. People don’t want me using public bathrooms or existing at all. I just want to be myself. To be free. To be happy, […] but I’m terrified all the time.’

 How do you answer whether the sex you identify with is the same as what you were registered at birth when society is poised to condemn you and remove your rights if you fail to answer ‘correctly’?

The way the Equality Act currently stands means that even with a Gender Recognition Certificate, a transgender person is only their ‘acquired gender’ (the gender they have chosen to transition into) for ‘most legal purposes’. Imagine only being regarded and respected as the person you are for ‘most’ of the time, for the rights you are entitled to, to only apply for ‘most’ of the time, to only feel safe ‘most’ of the time.

Society often strives to reduce the world to rigid binaries, yet the physical and social world persistently defies such simplicity. In reality, our world is complex and ever-changing - perhaps we need to allow people the freedom to be the same.

Written by INDI Varutti (BA Creative Writing and English Literature student), University of Chester, UK)