A former civil servant who played a key role in drafting the Equality Act has said the supreme court’s ruling about the legal definition of a woman contradicted the act’s original intentions.
Melanie Field, who oversaw its drafting and passage through Westminster in 2010, said the legislation was meant to give transgender people with gender recognition certificates (GRCs) the same legal status as biological men or women.
She said that treating trans women with GRCs as women in relation to sex discrimination protections was “the clear premise” of the policy and legal instructions to the officials who drafted the bill.
Thesupreme court’s ruling on Wednesdaythat the legal definition of “woman” referred only to biological women was “a very significant” reinterpretation of parliament’s intentions when it passed the Equality Act 2010 and the Gender Recognition Act 2004, she said.
“There are likely to be unintended consequences of this very significant change of interpretation from the basis on which the legislation was drafted and considered by parliament,” Field said in a post on the social media site LinkedIn.
“We all need to understand what this change means for how the law provides for the appropriate treatment of natal and trans women and men in a whole range of contexts.”
Field was deputy director (discrimination law) at the Government Equalities Office – a unit inside the Cabinet Office – and the lead official for the 2010 act. After leading on the Marriage (Same Sex Couples) Act 2013, she became executive director of the Equality and Human Rights Commission (EHRC), staying there until October 2023.
The supreme court’s 88-page judgment hasupended two decades of policymakingon trans rights, with police forces, hospitals and other public agencies rapidly rewriting their approaches to trans inclusion.
Its ruling said that while the word “biological” did not appear in the Equality Act’s definition of man or woman, “the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman”.
The former supreme court justice, Lord Sumption, questioned the way Wednesday’s judgment had been interpreted.
Sumption said: “I think it’s quite important to note that you are allowed to exclude trans women from these [single-sex] facilities. But you are not obliged to do it.
“So, for example, the authorities of a sport such as women’s boxing, women’s football, are allowed to limit it to biological women. They were not in breach of the discrimination rules of the Equalities Act.
“But the judgment does not mean that the sporting authorities have got to limit women’s boxing or women’s football to biological women.”
Kishwer Falkner, the EHRC chair, said on Thursday the commission wasrapidly drafting new statutory guidanceon how the court’s “enormously consequential” ruling affected single-sex toilets, sports and health services, and the rights of trans people to access those services.
The court emphasised, however, that trans people still had clear legal protection against harassment and discrimination, and to rights under equal-pay legislation.
Lady Falkner said the “new legal reasoning” was “a victory for common sense”, but “only if you recognise that trans people exist, they have rights and their rights must be respected. Then it becomes a victory for common sense”.
The court’s judgment followed a legal challenge by the gender-critical group ForWomenScotland against the Scottish government over its decision to allow trans women to take places set aside on public boards for women.
The Scottish government, which argues it was closely following UK law and the EHRC’s guidance, said it was meeting the commission next week and was seeking an “urgent” meeting with the UK government to discuss the next steps.
A senior Scottish minister is expected to update Holyrood next week on its response to the ruling.
The supreme court’s decision to state definitively that the Equality Act could only refer to biological women or men was based heavily on the act’s mention of women in the sections on pregnancy and maternity provision.
Field claims those clauses were changed on the instruction of ministers for political reasons to emphasise womanhood, despite the risks that could undermine the rights of a trans man who became pregnant. That “undermines the coherence of the drafting and I fear that this anomaly played a significant role in the approach taken by the court,” she said.
Field told the Guardian she was not trying to pick a fight with the court. “Their role is interpreting parliament’s intention and, in so far as they’ve sought to interpret parliament’s intention, I’m pointing out what I know about what parliament’s intention was, which was not the conclusions they have come to,” she said.
“It’s not for me to say that the supreme court has got it wrong, but what I’m saying is that the basis on which the act was drafted was not to give sex the meaning that they have concluded it has.”
Trans rights groups, trade unions and community organisations said they would hold an emergency demonstration in central London on Saturday to demand justice for trans people.
The rally will be held at 1pm in Parliament Square in Westminster.
A spokesperson for Trans Kids Deserve Better, one of the organisations supporting the protest, said: “Though this ruling has brought another wave of fear to the trans community, we will continue to fight for our rights and freedoms.
“We will stand strong against hate and fearmongering and continue to support our friends and siblings no matter how hard it gets.”