The solution can't be to build on what we have when what we have is so deeply filled with problems.
It is fair to say that the Supreme Court ruling on the definition of words like 'woman' and 'man' under the Equality Act has rocked the transgender community since it was announced on Wednesday, 16 April 2025.
There remains a lot of uncertainty but as the dust begins to settle one thing is becoming clear to community leaders: Labour is really bad at making law.
To get everyone up to speed: a 2018 Scottish law regarding gender representation on public boards was challenged by a group called For Women Scotland (FWS) for its inclusion of transgender women in the definition of the word 'women'.
This article has been published through the Ecologist Writers' Fund. We ask readers for donations to pay some authors £250 for their work. Please make a donation now. You can learn more about the fund, and make an application, on our website.
Discrimination
The group has also opposed other legislative measures meant to improve trans lives, such as Scotland's Gender Recognition Reform which passed with a vote of 86 to 39.
After multiple years of going through the courts and largely failing to succeed in arguing their case, For Women Scotland were finally granted permission to take their case to the Supreme Court (SC).
The judges there ruled unanimously that 'sex' under the Equality Act means birth sex. Therefore any reading of the legislation that included trans women as women would be "incoherent".
The judgment stresses that trans people are still protected under the Equality Act via the protected characteristic of gender reassignment.
But there is a very real concern amongst trans people and legal experts that this won't be enough to prevent anti-trans harassment and discrimination in women's spaces, services etc as providers could simply argue they exclude all men.
Equality
There is a lot that is still up in the air and we don't know exactly where it will land - such as the yet to be released Statutory Guidance from the EHRC.
Although this guidance isn't mandatory to adhere to, it is highly influential and it is expected that they will take a very heavy-handed approach with their interpretation of the Supreme Court ruling.
Despite claims that this ruling has brought clarity, it's hard to see anything but a chaotic mess, leaving my community in varying states of panic, anger, and resilience whilst the mega rich funders of groups like FWS huff cigars on yachts like movie villains.
Though its becoming clear what the problem is - and prominent voices in the trans community are beginning to crystalise around a solution.
If we take a step back and look at the legislation which prompted all of this, the Equality Act 2010 - written under a Labour government - the conclusion we can draw is that it is bad law.
The solution can't be to build on what we have when what we have is so deeply filled with problems.
Rights
It is specifically bad law that carves out huge exemptions for trans equality and was written in a way that allowed the Supreme Court to rule it would be incoherent to assume it was meant to include us.
It did so, in part, due to a society that at the time largely sought to pretend we didn't exist but also as a result of the Gender Recognition Act 2004 (GRA), also written under a Labour government.
The GRA is awful and trans people have been saying so for about as long as we have had a GRA. It has functioned as nothing but a burden for trans people and further complicated our legal position.
Despite boasting about passing it on many occasions across the last two decades, Labour politicians didn't do so out of the goodness of their own hearts.
They were mandated to provide legal recognition for trans people after being sued by a bus driver on the basis of two articles of human rights: the right to private life and the right to marriage ( straight marriage, at least).
Protections
In some respects the GRA was ahead of its time, having no requirements for medical or surgical intervention. But in others - the ones that really count here - - it is firmly rooted in the attitudes of the 70s court case that necessitated it.
Corbett V Corbett was the 1971 divorce case between a Baron and his wife, April Ashley, who he married in full knowledge she was a transgender woman.
In order to avoid paying any maintenance to her after a divorce, he sought to have the marriage made void by arguing the marriage couldn't stand legally as it was a gay marriage. He was successful in doing so, enshrining birth certificates as legal sex in the process.
In both the Supreme Court ruling and Corbett V Corbett the dividing line between trans women's inclusion as women is whether or not we can give birth.
In Corbett, the judge states that we "cannot fulfill the role of a woman in marriage" alluding to pregnancy and in the Supreme Court part of their reasoning is that protections for pregnant women would be incoherent if applied to trans women.
Challenge
The more our legislative systems have tried to bottle the concept of sex and split it out neatly into two distinct groups the worse things have gotten for transgender people who have long maintained that it's probably a bit more complicated than that.
Even now, the current Labour government is facing challenges in this area with regard to non-binary recognition, via Ryan Castellucci's ongoing legal fight.
Castellucci has so far been unsuccessful in their attempts, but remains undeterred. Should they be successful, however, Labour will once again be tasked with implementing primary legislation. Something which it has repeatedly proven it is really bad at, especially with regard to transgender people.
The Supreme Court ruling is bad law written because of the bad law that precedes that, and the bad law that precedes that, and the dodgy judgment in a divorce case meant to protect the wealth of an aristocrat that precedes that.
Should Castellucci or another challenge to the government's legal recognition succeed, the temptation will be to simply try and build on top of the above.
Learn
Instead I, and a growing number of voices in the transgender and feminist communities, think we should seek to knock it all down and start again.
We need to abolish legal recognition of sex and properly enshrine protections that aren't potentially reliant on whether or not people in 2010, 2004 and the 1970s wrote legislation that properly considered transgender people's lived experiences.
If we ever want to see good law being built - whether that's for transgender equality, women's rights or even climate action - then we have to lay the foundations for that correctly. The solution can't be to build on what we have when what we have is so deeply filled with problems.
Sometimes the only way forwards is to start over and learn from your mistakes.
This Author
Gemma Stone is co-founder of Trans Writes, a transgender-led platform that seeks out and publishes writings exclusively from transgender creators. This article has been published through the Ecologist Writers' Fund. We ask readers for donations to pay some authors £250 for their work. Please make a donation now. You can learn more about the fund, and make an application, on our website.
