The lead judge in the landmark ruling on the definition of sex in the Equality Act said that he would ‘take the flak’ and that he has ‘quite a lot of sympathy’ with the feeling that trans people have had something taken away from them.
In a wide-ranging interview with The Times, Lord Patrick Hodge, the deputy president of the UK Supreme Court who stands down in December, said he was aware that there would be criticism of the judgment and that there would be consequences.
Did we realise that would cause an outrage for people? Yes, because people had been led to believe by public authorities, among others, for the last 15 years that they had rights which they didn’t have” – Lord Hodge
The ruling in For Women Scotland v Scottish Ministers earlier this year ignited uproar from the trans community when a panel of three judges led by Lord Hodge ruled that, for the purposes of the Equality Act 2010, the legal definition of sex is that of biological sex.
It meant that organisations providing single-sex spaces or organising single-sex activities had to exclude transgender people to maintain the single-sex status.
The judgment led to the Equality and Human Rights Commission having to update its code of practice for services, public functions and associations, following a six-week consultation this summer.
In his interview with the newspaper, Lord Hodge emphasised that the case before the court had nothing to do with how or where single-sex spaces should be created.
“These points weren’t argued before us,” he said. “We were not there to decide points that were not put to us or were not raised in the course of argument, because we hadn’t heard each side’s position on it.”
Lord Hodge said the case was about how the Equality Act should be interpreted, and how that might affect provisions in the act.
“I and my two female colleagues who were the joint authors, went through the act section by section in considerable detail, asking ourselves which interpretation works,” he told The Times.
“Was the Equality Act meant to treat a trans woman with a gender recognition certificate as a woman? And we came unanimously to the view that it didn’t.
“Did we realise that would cause an outrage for people? Yes, because people had been led to believe by public authorities, among others, for the last 15 years that they had rights which they didn’t have. So I have some sympathy, quite a lot of sympathy, with the feeling that they had something taken away from them.”
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When he delivered the ruling on 16 April, Lord Hodge said: “We counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another; it is not.”
Speaking to the newspaper, he said: “I was aware that there would be criticism of our judgment, which is why, as the senior author, I said, ‘I will take the flak’. And though I don’t go on social media, I understand there’s a certain amount of flak directed at me there, and I was aware there would be consequences.”
He added that, ultimately, the decision was a “straightforward question of statutory interpretation”, and that to have not addressed it would have been a dereliction of duty.
“The question is a very directed question and ultimately, in our democracy, it is for the judiciary to make those rulings,” he said. “It’s not for the legislature to mark its own homework and say, ‘Well, we said that, but actually we meant something else’. I think it’s healthy for a democracy that you have someone outside the political world determining what is the meaning of the words that our legislature has chosen to use.”
The EHRC submitted its revised code of practice to the government earlier this month. Following ministerial approval, the government must lay the draft code before Parliament for 40 days before it can be brought into force.
TUC delegates dismiss ruling
Delegates at the TUC conference last week in Brighton voted unanimously to carry a motion which said that the interim “guidance” issued by the EHRC in response to the Supreme Court ruling is “flawed and inconsistent on the inclusion of transgender, non-binary and gender diverse people in public life, including as employees seeking to impose a duty excluding many workers from single-sex spaces in workplaces and public life”.
Delegates called for the TUC to campaign publicly on its policy for gender self-declaration, and to work with the government to update and improve the Gender Recognition Act 2004 and the Equality Act to achieve “social equality for all transgender, non-binary and gender diverse people”.
A TUC spokesman said: “While trans people remain legally protected from discrimination and harassment, those protections are not being realised following the Supreme Court ruling. The ruling leaves real practical issues for employers and workers, which is what this motion considers.
“Rather than overturning the judgment, it proposes that our laws are updated and improved so that they are inclusive and protective for all – including trans people and women.”
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