Extremely long post warning.
The SC judgement is a beautiful work, clarifying - NOT changing - the Equality Act 2010. Below are some extracts to illustrate the logic, especially where it is being repeatedly and obstinately misinterpreted by transgenderists.
134. First, to demonstrate less favourable treatment in subsection (1) an actual or hypothetical comparator is often relied on to demonstrate that a person without the relevant protected characteristic was or would have been treated more favourably by person A. Such a comparator (actual or hypothetical) must be a person who does not share B’s protected characteristic. Section 23(1) makes clear that, apart from the protected characteristic, there must be “no material difference between the circumstances relating to each case” when determining whether B has been treated less favourably. Accordingly, where sex is the protected characteristic, a woman relying on section 13(1) must compare her treatment with the treatment that was or would have been afforded to a man whose Page 40 circumstances are not materially different to hers; in other words, a similarly situated man. Where gender reassignment is the protected characteristic, in the case of a male person proposing to or undergoing gender reassignment to the opposite sex, the correct comparator is likely to be a man without the protected characteristic of gender reassignment and similarly for a woman (although there may be situations where the comparator’s sex is immaterial to the comparison). See for example, Croft v Royal Mail Group plc [2003] EWCA Civ 1045, [2003] ICR 1425 at para 74.
A male person proposing gender reassignment is NOT discriminated against by exclusion from the Ladies' Pond because, like all other men, he may use the Men's and the Mixed Ponds.
142. The EA 2010 is also concerned to prohibit disguised discrimination which operates at a group level. This is important as Michael Foran explains (in an article entitled “Defining Sex in Law” (2025) 141 LQR 76, 91–92:
“Arguments concerning the definition of a protected characteristic are never simply manifestations of individual claims. They are always group orientated. The claim that one is a woman is a claim to be included within a particular category of persons and to be excluded from another. It is also a claim to include some persons and to exclude other persons within the group that one is a part of. This matters especially for aspects of the Equality Act 2010 which require duty-bearers to be cognisant of how their conduct might affect those who share a protected characteristic or where there is an obligation to account for the distinct needs and interests of those who share a particular characteristic.”
In allowing men to use the Ladies' Pond - and/or women to use the Men's Pond - the committee must consider its duties to users having the protected characteristic of sex who, for religious or other reasons, cannot share an unclothed environment with members of the opposite sex.
144. First, the provisions concerning indirect discrimination are specifically directed at the problem of group discrimination and their purpose is to counter group (not individual) disadvantage. They operate where an apparently neutral policy or practice is applied generally to everyone but produces a disproportionate disadvantage for a particular group with a shared protected characteristic. Indirect discrimination is defined by sections 19 and/or 19A of the EA 2010. Section 19(1) and (2) provide that indirect discrimination occurs when a person (A) applies to another (B) a “provision, criterion or practice” (generally referred to as a “PCP”) if:
“(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
"(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
"(c) it puts, or would put, B at that disadvantage, and Page 44 (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
If you allow people with the characteristic of gender reassignment into all three ponds, you have privileged them in comparison to people with the characteristic of sex, who may only use two. This is indirect discrimination. It's also direct discrimination in light of 134 above.
168. Section 11 of the EA 2010 provides: “In relation to the protected characteristic of sex—
(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.”
169. The only other guidance as to the meaning of these expressions is given in the general interpretation provisions in section 212(1) which provide:
“In this Act … ‘man’ means a male of any age; … ‘woman’ means a female of any age.”
170. In other words, what is made unlawful is sex discrimination against women and men; and the provision in section 212(1) ensures that boys and girls are protected against discrimination connected to their sex.
Speaks for itself. The committee seems to have disregarded its duty to ensure it doesn't discriminate against men or women.
173. Moreover, it makes no sense for conduct under the EA 2010 in relation to sex based rights and protections to be regulated on a practical day-to-day basis by reference to categories that can only be ascertained by knowledge of who possesses a (confidential) certificate. Some of the practical consequences of a certificated sex definition are described in the case presented by Sex Matters. They state that uncertainty and ambiguity about the circumstances in which it is legitimate to treat (biological) women and girls as a distinct group whose interests need to be considered and protected, have the effect that many organisations now feel inhibited in doing so.
175. It is significant, however, that there is only one definition of sex. The concept of sex is of foundational importance in the EA 2010. The words sex and woman appear across different parts of the Act and in many sections. It would be surprising if the words sex and woman were intended to have different meanings in different sections or parts of the EA 2010, as the Inner House concluded, especially given the definitions of “man” and “woman” in section 212(1) of the EA 2010. Indeed, it would offend against the principle of legal certainty and the need for a meaning which is constant and predictable, especially in the context of an Act with the purposes we have identified, and which has such practical everyday consequences for so many individuals and organisations in society.
185. There are also provisions in the EA 2010 that allow for differential treatment afforded by service-providers and others to protect the health and safety of women generally and pregnant women in particular. In other words, what would otherwise amount to unlawful discrimination in regulated activities is not unlawful by virtue of these provisions.
The court goes on to show that discrimination is lawful if it favours the protection of women, even if it might be unlawful when applied to a different group.
It then explains why the Scottish government was wrong to introduce the concept of variable definitions of sex. As above, this offends against the principle of legal clarity.
199. Accordingly, the EA 2010 recognises sex and gender reassignment as distinct and separate bases for discrimination and inequality, giving separate protection to each. Those who have the protected characteristic of gender reassignment are referred to as “a transsexual person” (section 7(3)(a)), not as a “trans” woman or man. There is no distinction drawn in section 7 or elsewhere between those for whom the relevant process would involve reassignment male to female or female to male. In other words, it is the attribute of proposing to undergo, undergoing or having undergone a process (or part of Page 60 a process) for the purpose of reassignment, which is the common factor, not the sex into which the person is reassigned.
This is important, and needs repetition because it is being persistently flouted. Discrimination against a 'trans' person is discrimination against them for being 'trans', not discrimination against the sex into which they identify. They cannot suffer sex discrimination against their 'assigned' sex, because they do not meet the criteria specified in 168, 169, 170.
They can, however, claim discrimination against their perceived sex:
251. Take, for example, a trans woman who applies for a job as a sales representative and the sales manager thinks that she is a biological woman because of her appearance and does not offer her the job even though she performed best at interview and gives the job instead to a biological man. She would have a claim for direct discrimination because of her perceived sex and her comparator would be someone who is not perceived to be a woman. The fact that she is not a biological woman should make no difference to her claim, which would be treated in the same way as a direct discrimination claim made by a biological woman based on the sex of the complainant herself.
256. Applied, for example, to the case of a trans woman with a GRC, who presents as a woman at work and is perceived as a woman, and whose trans status and GRC are confidential: if a colleague harasses her (by making sexualised references to what she is wearing, or degrading comments about how she looks) she can bring a claim for harassment related to sex. She can also bring a harassment claim related to the protected characteristic of gender reassignment but may not wish to do so.
This is long section about remedies available to 'trans women' relating to discrimination against their perceived sex. It treats entirely with situations in which the person is clothed, and may be perceived as a female. Hampstead Ponds involve swimming and sunbathing naked, with changing facilities also involving communal nudity. Vanishingly few 'trans women' could be perceived as female without clothes on - and, if they were, it's unlikely they'd be challenged. Ditto for 'trans men' using the Men's Pond.
There's a lot more very sensible commentary before the above, on collisions between acquired gender and biological sex, with special mention for lesbians, who cannot be forced by the law to include opposite-sex 'women' in their same-sex gatherings. Circumstances such as medical provisions and communal changing or sleeping facilities, sports, single-sex charities and data collection are also examined with detailed logic.
The overriding principle when applying the EA2010 is whether an inclusion or exclusion is proportionate and reasonable. It can't be proportionate or reasonable to include people of one protected characteristic (reassignment) in all provisions, where this inclusion forces the exclusion of others of another protected characteristic (religion, age, disability or, indeed sex) on privacy & dignity grounds.
If this post wasn't long enough for you, here's the full text: supremecourt.uk/uploads/uksc_2024_0042_judgment_aea6c48cee.pdf