​Gender and space: On trans people’s basic rights  

In the backdrop of a rising trend of decimation of rights for people who do not fit into the binary of male and female, led by the U.S. administration, a recent U.K. Supreme Court ruling has further polarised the gender debate. In an 88-page judgment, five judges unanimously ruled that only biological women and not transwomen meet the definition of a woman under Britain’s Equality Act 2010. In its limited scope of deliberation, it provided a “statutory interpretation” that the terms ‘woman’ and ‘sex’ in the Act refer only to a biological woman and the biological sex. A transwoman who has undergone a gender reassignment and has a gender recognition certificate as a woman for all purposes would lose the right to be treated as a biological woman. While the appellants in the case, For Women Scotland, funded in part by gender-critical writer J.K. Rowling, celebrated the verdict saying they had been vindicated, trans supporters and campaigners felt it was a setback for trans inclusion. There has been a considerable change in the resolve of the original respondents, The Scottish Ministers, too with the resignation of Scottish National Party leader Nicola Sturgeon in 2023. She had led the fight to change gender laws so that those with gender recognition certificates could be entitled to the same protections as biological women. But there was a backlash against gender recognition reforms after a trans woman, who had raped two women while she was a man, was initially sent to an all-female prison.

The ruling made the point that the Gender Recognition Act 2004 gives legal recognition to the rights of transgender people on marriage, pensions, retirement and social security, and that the equality law protects them against discrimination. Kishwer Falkner, the chair of the U.K.’s Equality and Human Rights Commission (EHRC), said the court’s “clarity” means only “biological women could use single-sex changing rooms and women’s toilets, or participate in women-only sporting events and teams, or be placed in women’s wards in hospitals”. But as the judges counselled against reading the judgment as a triumph for one or more groups in society at the expense of another, the EHRC should also ensure that unisex or neutral spaces are earmarked for trans people when it issues new guidelines. That holds true for all institutions, offices, hospitals and schools, planning restrictions. The ruling will have an impact on the sporting arena where athletics, cycling and aquatics have already banned transgender women from participating in women’s events. As the experience with India’s Transgender Persons (Protection of Rights) Act 2019 shows, any changes in the legal framework must factor in the trans people’s basic rights or else they will face more strictures.