What Does the Supreme Court Ruling on the Definition of ‘Women’ Mean for Healthcare?
Written By Adiyat Zahir
In a landmark decision, the UK Supreme Court has ruled that the legal definition of a woman, under the Equality Act, is based on biological sex, therefore excluding transgender women. Five judges unanimously decided that those who are not born as biological women cannot access the legal protections granted by the Act, even if they have a gender recognition certificate. This could have far-reaching implications in many areas, such as single-sex spaces, women’s sport and prisons - but how might it affect women’s healthcare?
Responding to the ruling, Baroness Kishwer Falkner, chair of the UK’s Equality and Human Rights Commission, has said that the NHS “has to change” its current policies on gender, warning that it would be pursued if it does not. Current NHS guidance states that transgender people should be accommodated based on the way they dress, their name and their pronouns, including affording them access to single-sex spaces based on how they present. Under the new ruling, this would be scrapped.
Supporters of the ruling, such as the baroness, argue that this safeguards the rights of those born female by ensuring that single-sex spaces, like hospital wards, are reserved for them. However, this could come at the detriment of trans individuals attempting to access healthcare, who already face delays and discrimination within the system. A 2021 survey by the NGO TransActual found that 70% of trans people reported being impacted by transphobia when accessing non-transition related healthcare, with 57% of trans people saying that they avoided going to the doctor when unwell due to fear of discrimination. If trans individuals are forced to use services that do not align with their gender identity – such as being placed in male wards or being denied access to female-specific clinics – it is likely that these statistics will only be exacerbated.
Trans people already face poorer health outcomes due to failures by the medical system to adequately train doctors to understand trans healthcare. In their position statement on ‘The Role of GPs in Transgender Care’, The Royal College of General Practitioners acknowledges that “the UK lacks a nationally recognised training programme for gender identity healthcare.” This leads to inconsistent levels of care for trans people directly affecting their health outcomes; a 2024 cross-sectional study, led by the University of Manchester, found that trans people in England were up to five times more likely than cis individuals to have a long-term mental health condition , with the study’s co-author explaining that this is due to “poor communication from healthcare professionals and inadequate staff-patient relationships”. Further excluding trans people from healthcare risks widening these disparities by creating rigid binaries as opposed to training medical professionals to identify the unique needs of trans individuals.
Considering a broader perspective, the court’s ruling that the legal definition of a ‘woman’ pertains only to biological sex may have wider implications for individuals whose sex assigned at birth may not necessarily correlate with their phenotypic presentation. This includes intersex individuals, whose chromosomal patterns and sex characteristics may not fit with the typical binary notions of male and female bodies. Other conditions, such as androgen insensitivity syndrome, may affect the development of a person’s genitals, reproductive organs and sexual characteristics, resulting in physical traits which may not reflect one’s chromosomal or assigned sex. It is crucial that individuals outside the typical gender binary have access to the most appropriate healthcare for them and their bodies, which this ruling risks undermining by reinforcing rigid definitions of sex that do not encompass the broad spectrum of physical and sexual characteristics people may express.
Other public bodies have already begun to update their official policy in line with the decision made by the Supreme Court. An NHS England spokesperson has said that “the NHS is currently reviewing guidance on same-sex accommodation and, as part of this process, will consider and take into account all relevant legislation and the Supreme Court ruling.” Given the highly devolved structure of the NHS, as well as the sensitive nature of the subject, it is unclear when the guidelines may be updated, though some. The process is likely to be expedited by government pressure alongside pressure from other public sectors; the British Transport Police have already changed their guidelines so that male officers will conduct intimate searches of trans women, “in accordance with the biological birth sex of the detainee”. It is also likely that certain cases, such as that of the nurse Sandie Peggie, who was suspended after refusing to share a changing room with a transgender doctor, will come under review.
There is a risk that this ruling could become a flashpoint which fuels hostility and further polarises the opposing sides of the political debate around gender identity. When announcing the decision made by the court, Judge Lord Hodge told the court, “We counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another, it is not.” He added that the Equality Act would continue to provide transgender people with “protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender.” Baroness Falkner echoed a similar sentiment, calling the ruling “a victory for common sense only if you recognise that trans people exist, they have rights and their rights must be respected”. Like the baroness, many supporters of the judgement are adamant that this ruling will not allow for an increase in harmful behaviour towards trans people. However, trans campaigners argue that, despite the intentions outlined by the court, such a ruling fundamentally negates the rights of trans women, and in practice, risks legitimising exclusionary practices to reinforce societal stigma.
It remains to be seen whether these rights can be protected, as public institutions review their recognition and treatment of trans individuals. Though the UK government has welcomed the “clarity and confidence” this judgement will bring to biological women and service providers, trans rights campaigners have said that many trans people now fear they could lose access to facilities they’ve now used, in some cases, for decades. Regarding the NHS, trans people may end up facing increasing barriers to healthcare depending on how the NHS decides to implement this ruling in their own guidelines, be it changes in attitude, longer wait times, or difficulty accessing care.
As the NHS and other public bodies navigate the implications of this ruling, the challenge remains to ensure that the rights and dignity of women are protected, transgender and cisgender alike, without further marginalising an already vulnerable group. And, as medics, we should be wary of falling into the trap of reducing people to binary categories, for clinical care extends far beyond a patient’s gender identity; at the heart of patient-centred care is the recognition of each person as a complex individual with unique experiences and needs, as deserving of every bit of compassion and respect as the next.
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