“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.
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.
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.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:
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