“It is biology that defines sex, not one’s personal preference.”
The Supreme Court unanimously ruled that the terms “woman,” “man,” and “sex” in the Equality Act 2010 refer to biological sex, not to gender identity or the sex recorded on a Gender Recognition Certificate (GRC).
This decision specifically affects the interpretation of the Equality Act 2010. It does not invalidate the Gender Recognition Act 2004, which allows individuals to legally change their gender.
For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) Equality Act 2010
This vital ruling stemmed from a legal case brought by For Women Scotland Ltd against the Scottish Government, contesting that the Scottish Government had exceeded its devolutionary powers when it came to its application of the definition of ‘woman’ in respect of the Gender Representation on Public Boards Act (Scotland) 2018. The Scottish Government argued it should meet a specified percentage of female representation on public boards. To achieve this, it legislated that the definition of ‘woman’ included individuals born female and those identifying as female under a gender recognition certificate, which is not what the UK Government intended when it enacted the 2010 Act.
The repercussions of the Supreme Court’s decision have generated a significant division between organisations advocating for women’s rights and those supporting transgender activism. Proponents of the former classify the ruling as a “win for common sense" whereas individuals within the latter cohort perceive it as exacerbating the marginalisation of an already disadvantaged demographic. Nevertheless, this ruling does not infringe upon a transgender individual’s right to protection against unlawful discrimination.
How is Transgender Acknowledged in Regards to Sexual Discrimination in the Workplace?
While ‘sex’ is legally recognised as binary and grounded in biological characteristics, from the perspective of equality law, it signifies that an individual who has undergone gender reassignment cannot be acknowledged as that gender for the purposes of lodging a claim for sex discrimination. That said, gender reassignment continues to be enshrined in law as a protected characteristic, and its repeal would require an act of Parliament. Consequently, protections against discrimination remain intact, and it is the responsibility of employers to ensure that they refrain from any actions that could be deemed discriminatory toward employees who identify as members of the transgender community.
Impact on Transgender Individuals and Workplace Discrimination
The ruling does not remove protections against discrimination for transgender individuals. The Equality Act 2010 continues to recognise “gender reassignment” as a protected characteristic, safeguarding individuals from discrimination related to transitioning.
Clarification: Employers should note that this ruling does not permit discrimination against transgender employees. They are still required to ensure a workplace free from harassment and discrimination for all employees, including those undergoing or having undergone gender reassignment.
How Should Employers Approach Transgender Equality in the Workplace?
A significant concern for employers arising from this ruling pertains to the administration of single-sex facilities within the workplace. A seemingly obvious solution is to provide gender-neutral options; however, this may not be practically achievable. While a self-contained toilet utilised on an individual basis could accommodate all genders, the situation becomes more complicated regarding other single-sex facilities in the workplace which do include changing rooms, breastfeeding rooms, or spaces designated for women to address their symptoms of menopause. Employers might consider it reasonable to eliminate such designated areas for women; however, in doing so, they risk disadvantaging their female employees.
Implications for Employers and Single-Sex Facilities
Employers should carefully consider how this ruling affects the provision of single-sex facilities. While providing gender-neutral options is one approach, it’s essential to balance this with the rights and needs of all employees.
This ruling remains in its initial stages, and employers should refrain from taking premature actions while awaiting further guidance from organisations such as the Equality and Human Rights Commission, which has indicated that it will issue an updated Code of Practice after this ruling. Employers should await this guidance before making significant changes to policies or facilities. The fact is that this ruling is likely to evolve into a topic of debate influenced by political discourse and social media and, regrettably, such circumstances may lead to allegations of discrimination particularly as much of the media has distorted the significance of this ruling in suggesting that it is policymaking.
The most prudent course of action for employers is to avoid making hasty decisions and to adopt a fair and equitable approach when addressing these issues. As such, employers are encouraged to adopt a broader perspective on their organisation and consider how the Supreme Court’s ruling will affect them. While the following list is not exhaustive, employers may want to consider the points below:
- Acknowledge how this decision has affected employees who are members of the transgender community, as reports indicate significant anxiety related to it. Recognising its impact and adapting to meet the needs of transgender employees represent positive steps toward safeguarding their well-being. (Whilst also considering rights and needs of all employees)
- Evaluate the aspects of their workplace that may be affected, including single-sex facilities, and assess the feasibility of converting them to gender-neutral alternatives.
- Review their policies and consider future implications regarding potential changes however it may be best to await further guidance.
- Legal Nuance: While the ruling defines “woman” and “man” in terms of biological sex for the purposes of the Equality Act, it does not mandate the exclusion of transgender individuals from single-sex spaces. Decisions regarding access should be made based on a proportionate means of achieving a legitimate aim, considering the rights and needs of all individuals involved.
- Employer Responsibility: Employers should continue to foster an inclusive environment, ensuring that policies and practices do not inadvertently discriminate against transgender individuals. Regular training and clear communication can aid in maintaining a respectful workplace.
Neathouse Partners specialises in employment law and would be happy to help should you require legal counsel or human resources support. Please do not hesitate to contact us on 0333 041 1094 or book a call in with our team
