Unions at legal crossroads

In the six weeks since the Supreme Court ruled that “sex” in the Equality Act refers to biological sex, trades unions have responded with an uneasy mix of public condemnation and watchful waiting. 

Some early reactions suggested strong resistance to the ruling. But official statements over the past month reveal a more nuanced and evolving approach, prioritising compliance while continuing to express commitments to inclusivity – perhaps as boardrooms, and general counsels, step in to overrule staff with EDI jobs. 

Teaching unions were among the first to make headlines for urging non-compliance with the judgment. The National Education Union (NEU) executive committee passed a motion that, in effect, rejected the Supreme Court’s legal clarification, describing the accompanying EHRC guidance as “incoherent [and] unclear”. Meanwhile, University and College Union (UCU) president Jo Grady called on members to protest. Patrick Roach, the general secretary of the National Association of Schoolmasters Union of Women Teachers (NASUWT), claimed that the organisation had been contacted by teachers concerned about the implications for them and for the pupils. After stating that he believes “trans rights are human rights”, he urged the government to act to “protect those rights in law and in practice”.

None of the main teaching unions, despite representing a female-dominated profession, mentioned the relief felt by members who care about sex-based rights.

GMB, Unite, and the Public and Commercial Services union (PCS) also issued early statements of support for trans and non-binary members. GMB warned employers to take immediate steps to prevent harassment in the workplace, emphasising that legal protections based on gender reassignment remain intact. Unite stressed the need to “not allow division between our members”. PCS dubbed the interim EHRC guidance “not fit for purpose”. PCS members have since threatened to go on strike and take legal action to oppose the ruling.

But even as unions continued to express their solidarity for trans-identifying members, some began to recalibrate their messaging. A notable example is Unison, the UK’s largest public-sector union (and the one with the highest female membership). While reaffirming support for trans and non-binary rights, Unison temporarily removed its trans-inclusivity guidance from its website, citing a need to ensure legal compliance. “The union is currently working on providing definitive advice,” a statement read.

USDAW, which represents retail workers, had previously produced guidance on trans allyship and marked LGBTQAI+ events throughout the year. But at the time of writing, it has released neither a statement nor any guidance, suggesting at least some uncertainty behind the scenes about its previous all-in approach. 

The Royal College of Nursing (RCN) adopted a measured tone, underscoring its dual commitment to the rights of women and those of people who identify as trans. “The decision is complex,” it said, going on to advise employers to “engage in constructive dialogue and carefully consider what action they need to take to ensure they comply with their legal obligations”. It has recently been revealed that the RCN is being sued by nurse Sandie Peggie, who says that the union failed to support her.

BECTU (Prospect), which represents workers in film, broadcasting, arts and entertainment industries, released an updated trans support guide in early May, reflecting pre-existing commitments but acknowledging that the Supreme Court decision “will be of concern to many trans members”. The guidance is in places vague, but does not recommend anything that contradicts the Supreme Court judgment.

Unite’s response typifies the trend toward internal consultation. Although its public rhetoric remains staunchly pro-trans, it has started a review involving both its National Women’s Committee and its LGBT+ Committee. It has also set up a working group to assess the ruling’s implications and to guide future policy. 

This evolution from statements on social media expressing solidarity with trans and non-binary members, and lamenting perceived threats to their rights, to legal realism and internal deliberation reflects the difficult situation unions have created for themselves by handing the reins to a small number of extremists, both inside and outside their organisations. The language and demands of trans lobby groups are now baked into their internal processes and policies. But they are also duty-bound to provide legally sound guidance to members and to avoid exposing themselves or their members to legal liability. The result is an awkward mix of “trans-supportive” rhetoric with recognition – sometimes regretful – of the judgment’s legal authority. 

The judgment is clear and sets out the legal situation with no need for anything further. However, both unions and other organisations are likely to use the Equality and Human Rights Commission’s recently launched consultation on the statutory code of practice for service providers as cover for ongoing internal consultation and gradual shifts in public messaging. The coming months will test the limits of reconciling trans advocacy with legal compliance.