‘A Third Sex: Returning to an Intermediate Zone’ for the Discrimination Law Association’s July 2025 issue Briefings.
In a significant joint commentary ‘A third sex: returning to an intermediate zone’ Garden Court barrister Oscar Davies and legal researcher Jess O’Thomson critically assess the human rights implications of the Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (“FWS”) in the Discrimination Law Association’s July 2025 issue Briefings.
They argue that the effect of the judgment, whether on a broad or narrow reading, is to place trans people in an ‘intermediate zone’ of a nature incompatible with the ECHR. The consequence is that they are effectively treated as a third sex, and the rights guaranteed by the Gender Recognition Act 2004 following Goodwin have become illusory. They conclude that the FWS decision is incompatible with the ECHR and will result in violations of trans people’s Article 8 rights. They urge the courts to bear in mind the obligations in the ECHR when interpreting the implications of the judgment in future cases and ensure that all people’s rights are respected and protected.
Background and Legal Context
In FWS, the Supreme Court held that the term “sex” in the Equality Act 2010 (EA) refers to “biological sex,” and not the acquired gender of a person with a Gender Recognition Certificate (GRC). This reading effectively excludes the legal recognition of a trans person’s affirmed gender within the EA’s provisions. As O’Thomson and Davies note, “[t]he effect of the judgment… is to place trans people in an ‘intermediate zone’ of a nature incompatible with the ECHR” (para 1).
The authors describe two interpretative approaches to the judgment. The “broad” interpretation implies that the EA now mandates exclusion of trans people from single-sex spaces aligned with their lived gender, such as toilets, changing rooms, clubs, or even custodial search procedures (para 6).
In contrast, the “narrow” interpretation holds that services and organisations may exclude trans people but are not required to. However, even under this view, trans people’s ability to bring sex discrimination or equal pay claims is substantially curtailed (para 7).
The “Intermediate Zone” and Human Rights
The article places particular emphasis on Strasbourg case law which establishes that states must ensure effective, practical legal gender recognition. In Christine Goodwin v UK (App No 28957/95, 11 July 2002), the European Court of Human Rights (ECtHR) ruled that legal recognition must not be “theoretical and illusory” but “practical and effective” (para 74). It held that law which does not align with the social reality of a trans person “places [them] in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety” (para 77).
Crucially, in Goodwin, the ECtHR stated that “the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable” (para 90). O’Thomson and Davies argue that FWS effectively reinstates this zone for all trans people, whether or not they hold a GRC.
The authors also cite A.P., Garçon and Nicot v France (Apps Nos 79885/12, 52471/13, 52596/13), where the ECtHR held that requiring sterilisation for legal gender recognition violated both Articles 3 and 8 of the Convention, and that gender identity is an “essential component” of personal identity (para 95). The case reaffirmed the positive obligation of states to ensure that trans people’s rights to private life are respected without disproportionate interference.
Margin of Appreciation and Convention Compatibility
The article recognises that in some limited contexts, the ECtHR allows states a wider “margin of appreciation” to balance individual rights against public interest or competing rights. For example, in O.H. and G.H. v Germany (Apps Nos 53568/18, 54741/18), the Court upheld Germany’s approach to recording trans parenthood on children’s birth certificates. However, the judgment stressed that even in such areas, a “fair balance” must be struck and any intrusion into privacy should be limited and proportionate (paras 112–117, 131).
O’Thomson and Davies argue that under either interpretation of FWS, the UK courts did not engage adequately with this balancing exercise. Despite submissions from Amnesty International UK, the Supreme Court made “no mention” of section 3 of the Human Rights Act 1998, which requires courts to interpret legislation compatibly with the ECHR “so far as it is possible to do so” (para 51). The authors conclude that this failure risks placing the UK in breach of its international obligations under the ECHR.
Concluding Observations
In their concluding sections, the authors draw attention to Lady Hale’s remarks in R (C) v Secretary of State for Work and Pensions [2017] UKSC 72, where she emphasised that trans people are entitled to live “not as a member of a ‘third sex’, but as the person they have become” (para 29). By failing to align with this jurisprudence, FWS marks a significant regression in the legal protections available to trans people.
Ultimately, the article calls on courts and public authorities to remain alert to their obligations under the Convention. In future cases, judges must interpret FWS in a manner that ensures all individuals’ rights are respected and protected. The authors argue that both dignity and legality require the UK to avoid relegating trans people to a status that undermines their legal personhood and social reality.
