by Camilla Tominey, Telegraph
A government cannot pick and choose which Supreme Court judgments it deems palatable
When is a Supreme Court judgment not a Supreme Court judgment? When it is treated as optional by those who once celebrated the authority of the courts as sacrosanct.
When Baroness Hale and her fellow justices ruled that Boris Johnson’s prorogation of Parliament was unlawful, progressives across Britain hailed the decision as a triumph for truth, democracy and the rule of law. The judgment affirmed a fundamental constitutional principle: that Parliament’s ability to scrutinise and hold the executive to account must not be overridden for political convenience. The Supreme Court was lauded not merely as an arbiter of legal disputes, but as a guardian of democratic integrity.
Yet that reverence appears conspicuously absent in response to April’s Supreme Court ruling that, under the Equality Act, “sex” refers to biological sex. The judgment was clear in its implications: single-sex spaces such as women’s changing rooms, lavatories, hospital wards and prisons may lawfully exclude trans women – biological males – where such exclusion is necessary and proportionate. This was not a culture-war flourish, but a straightforward interpretation of statute.
In the wake of the ruling, businesses and public bodies have been awaiting updated guidance from the Equality and Human Rights Commission (EHRC) to clarify their legal obligations. The purpose of the guidance is practical rather than ideological: to ensure organisations understand how to comply with the law while protecting the rights of all groups recognised under the Equality Act.
Yet eight months on, that guidance remains unsigned. It has emerged that Education Secretary Bridget Phillipson, who is also the Secretary of State for Women and Equalities, has still not approved the EHRC’s draft code of practice. Worse, she is reportedly withholding approval because she views the guidance as “trans-exclusive”, despite the fact that it is intended to reflect a binding Supreme Court judgment.
In a statement submitted to the High Court, Ms Phillipson argued that banning trans women from women’s lavatories would also imply that women could not take their infant sons into changing rooms at swimming pools. She further suggested that the guidance fails to accommodate “common sense” scenarios, such as pregnant women choosing to use men’s toilets to avoid queues in theatres. She even went so far as to ponder whether a peripatetic female massage therapist who only provides massages to women could make an exception for a man with whom she has a pre-existing professional relationship.
This is palpable nonsense.
Read also: JK Rowling condemns Labour for blocking new trans guidance protecting women’s rights to female-only safe spaces, Daily Mail
Bridget Phillipson is putting trans activism above the law by Jo Bartosch, spiked