GDS response to High Court sex and gender ruling

My constituency MP is . As part of her role as Parliamentary Under-Secretary of State at the Department for Science, Innovation and Technology, she gave the following response to a question in Parliament on April 25th 2025 ().

The GOV.UK Design System provides guidance and components to departments, so that there is a consistent style and experience for users interacting with government information and services online. This guidance is continually iterated with input from external experts and specialists across government, to help ensure that digital services are inclusive, easy to use and comply with the Public Sector Equality Duty. Following the recent Supreme Court ruling in For Women Scotland Ltd v The Scottish Ministers, we will review the Design System’s guidance in line with any changes to the Codes of Practice issued by the Equality and Human Rights Commission (EHRC).

This blog post is about why I find that statement highly concerning.

I currently have an with GDS / the Cabinet Office (via What Do They Know) asking for more information about another statement made by the Minster, (my highlight in bold).

The Government recognises the importance of accurate data and statistics on sex and gender, and has shared the independent review’s recommendations with departments for consideration in ongoing policy work. The Government Digital Service is also developing data standards for attributes of a person with input from across the public sector. Digital verification services, and public authorities processing personal data which may be used by such services during the verification process, are subject to data protection legislation which requires the personal data they’re processing to be relevant and accurate for the purpose for which it is being used.

My extreme concern is that the statement about updating the Design System reflects an attitude change in GDS, which may feed into the “attributes of a person” data standard. Something that might define how people are treated, and their associated civil rights, for many years to come.

It’s commonly acknowledged that digital systems should be designed by a multidisciplinary team, based on user research and funded for long-term iteration and support. Even the Treasury, a body not known for fast evolution of funding models, is . And yet many of us know from long experience that new digital services are often funded only long enough to go live (or not even ) either by an internal team that is quickly moved onto something else or often by an outsourced team that leaves with all associated knowledge once the job is “done”.

What this means is that such systems are often very hard to change. Especially if they integrate into other systems and organisational processes. This is why getting the data definitions correct is so important. Which, in turn, is why defining the “attributes of a person”, especially those related to sex and gender, is profoundly critical. The standard may change in the future but, by then, the one being defined now may have been used in dozens of systems that will be extremely technically, financially and politically difficult to update.

We need to get this right the first time.

Which brings us to and related statements from the (EHRC — not to be confused with the European Court of Human Rights).

On the 16th of April 2025, the UK Supreme Court published its ruling on “”. The court ruling included the following:

The court found in a unanimous decision that, when referring to the Equality Act 2010, the terms “man”, “woman”, and “sex” were “always meant” to refer to “biological sex”, and not gender or gender identity.

What effect this will have is extremely difficult to predict at this point. Especially with very vocal groups on both sides of the argument and, with a seeming lack of central briefing from Number 10, different ministers are making somewhat contradictory and fast evolving statements. For example, that Cabinet Office minister responded to a related question by implying that transgender people will be banned from toilets of the gender they identify with.

Meanwhile, Wikipedia defines the EHRC as follows:

The Equality and Human Rights Commission (EHRC) is a non-departmental public body in Great Britain, established by the Equality Act 2006 with effect from 1 October 2007. The Commission has responsibility for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales (in Scotland, together with the Scottish Human Rights Commission). It took over the responsibilities of the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. The EHRC also has responsibility for other aspects of equality law: age, sexual orientation and religion or belief. A national human rights institution, it seeks to promote and protect human rights throughout Great Britain.

But there is a problem. Since 2020, especially following the appointment of , the EHRC has had an ever-increasing number of public positions that can be viewed as anti-equality. These are especially true in relation to transgender individuals. The Wikipedia page for the organisation goes into extensive details about this, as well as an investigation into Baroness Falkner herself following complaints of bullying and harassment by current and former EHRC staff, as well as her “seeking to undermine transgender rights, and presiding over a ‘toxic culture’”. The investigation was terminated by Kemi Badenoch before it was concluded.

In November 2024, Bridget Phillipson, the current Secretary of State for Education as well as Equalities Minister, announced that Falkner’s four-year term would be extended for 12 months, and that a new chair was being sought.

This has not stopped the EHRC very quickly making multiple statements following the Supreme Court decision. Including which includes sections such as this:

The Supreme Court ruled that in the Equality Act 2010 (the Act), ‘sex’ means biological sex.

This means that, under the Act:

• A ‘woman’ is a biological woman or girl (a person born female)
• A ‘man’ is a biological man or boy (a person born male)

If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC).

• A trans woman is a biological man
• A trans man is a biological woman

As well as this patently ridiculous statement, which demonstrates a level of breathtaking over-reach:

Membership of an association of 25 or more people can be limited to men only or women only and can be limited to people who each have two protected characteristics. It can be, for example, for gay men only or lesbian women only. A women-only or lesbian-only association should not admit trans women (biological men), and a men-only or gay men-only association should not admit trans men (biological women).

is already following the ruling. Jolyon Maugham, Director of that organisation, made the following statement on Bluesky in relation to .

If you want to know how serious our decline is in the UK, when North Carolina did what the Labour Government and EHRC have done, the then UK Government told LGBT+ people to beware traveling there.

Into this mix we also add the March 19th published Independent report : . This document was commissioned in February 2024 by the Secretary of State for Science, Innovation and Technology with the following aims.

• Identifying obstacles to accurate data collection and research on sex and on gender identity in public bodies and in the research system
• Setting out good practice guidance for how to collect data on sex and gender identity

The report is over 200 pages long and I’m sure it is being reviewed in great detail in GDS. I won’t reproduce great chunks of it here as this is already too long. Suffice to say, amongst many other things, it covers the following points.

• The clear distinction between sex and gender identity. It supports the argument that public services must treat sex and gender identity as distinct concepts for legal, medical, and operational accuracy.
• Recognition of systemic inconsistency. It highlights inconsistent or vague data practices across government that have led to confusion, reduced data quality, and legal risk.
• A call for leadership and standardisation: It explicitly calls for central guidance and coordination that is currently lacking.
• Issues in specific use cases (e.g. health, education, justice). The report gives examples of how unstable sex/gender data affects safeguarding, fairness, and operational delivery.

The entire of chapter two concerns potential principles of question design for digital and other government systems in relation to sex and gender. This does into significant detail and could be used as guidance alongside the existing Government Design Principles and the content of the .

All of which brings us back round to Feryal Clark’s recent statements to Parliament and my related concerns.

is an amazing, award-winning, cross-government common-component software library that has been used as the basis for similar systems by governments around the world. They are built on the foundation of the — including .

The current starts off with the very sensible following statement:

Only use this design pattern to ask users about gender or sex if you genuinely cannot provide your service without this information.

Before going on to have a lot more sound advice, such as avoiding the use of pronouns whenever possible. The guidance refers to the related which, in turn, refers to the . For sex and gender, the current example question is this:

It’s far from clear if / how this would need to be changed following the Supreme Court ruling.

Notably, the question above does not collect information on Gender Recognition Certificates or ask people to record their current gender identity. It’s a self-identification question with no further data stored. This doesn’t mean that departments may choose not to use this pattern and may require and store extended gender related information.

As well as the reputation of the EHRC there are other troubling examples of the direction of travel of government policy related to these issues. The 2021 Census, developed by the Office for National Statistics, developing their questions related to sex and gender identity (). However, on 12th September 2024, Emma Rourke, Deputy National Statistician, to Ed Humpherson, the Director General for Regulation at ONS, stating the following:

There is great value in the data that has been collected on gender identity. However, we also recognise that we can do more to support users with how to interpret the data and ensure the limitations are clear. To support this, ONS is planning to publish further explanation of the uncertainty associated with the estimates and guidance on their appropriate use. In addition, I would like to request that the gender identity estimates from Census 2021 are no longer accredited official statistics and are instead classified as official statistics in development. This will better reflect their innovative nature and the evolving understanding of gender identity.

This effectively annuls all the effort developing and evaluating the related question and data and appears to be part of a very worrying trend.

So, the obvious question now is — what happens next? There’s a broad context to this in terms of how the government will respond to the Supreme Court judgement across a huge variety of contexts. There’s certainly a wide argument that, to stay compliant with the law, they may need to do a lot of things. Decisions as to what those things are, and choices about what resources to spend to adapt at what pace, are going to be very much up to individual Ministers, unless there is central guidance that hasn’t been published. This is especially the case while responses, such as those from Good Law, are still taking place

It’s very much worth stating that decisions to reduce the flexibility of sex and gender related information stored in government digital systems will impact a significant number of classes of people beyond those who self-identify as transgender or have UK Gender Recognition Certificates. These include the likely over 1 million people in the UK who are intersex, the 10s of 1000s who self-identify as non-binary and people from cultures that have .

Decisions made now about the standardisation of collection of sex and gender related information and especially about “attributes of a person” are likely to have an extremely long lasting impact.

For those with time and interest I encourage you to read the full independent report. It’s extremely comprehensive and, while I don’t agree with the full contents, it serves as an excellent basis for discussion.

At this time I strongly urge GDS, and other groups in government working on these issues, to take into account the current situation at the EHRC and to open the discussion to public consultation, especially with representatives from the impacted classes, before making any decisions that may seriously negatively impact a wide range of already vulnerable people.