I wonder what the recent Supreme Court judgement on the definition of "woman" means for employers?

The recent Supreme Court ruling in For Women Scotland Ltd v The Scottish Ministers has significant implications for UK employers, particularly regarding how the terms “sex” and “gender” are interpreted under the Equality Act 2010 (EA 2010).

What Was the Supreme Court Decision?

In this landmark case, the Supreme Court ruled that “sex” under the Equality Act 2010 refers to biological sex. This means that individuals with a Gender Recognition Certificate (GRC) are not recognised as their acquired gender for the purposes of the EA 2010. Therefore:

• Trans women (biological males) are not considered “women” under the Act.
• Trans men (biological females) are not considered “men” under the Act.

The case arose from Scottish Government guidance on gender representation on public boards, which treated trans women with GRCs as women under the Act. For Women Scotland challenged this approach, arguing that the terms “man,” “woman,” and “sex” in the Act referred solely to biological sex.

The Court agreed, stating that interpreting “sex” to include acquired gender would undermine certain provisions of the Act, particularly those related to pregnancy and maternity, which only apply to biological females. The judgment rejected the idea that the meaning of “sex” could vary by context or depend on whether someone has a GRC, as this would lead to an inconsistent, two-tier system.

As a result, the Court confirmed that “sex” must consistently mean biological sex throughout the Equality Act 2010.

What Does This Mean for Trans Rights Under the Equality Act?

Despite the ruling, transgender individuals remain protected under the Equality Act 2010. Specifically, the Act provides protection under the protected characteristic of “gender reassignment”. This covers anyone who:

• Proposes to undergo,
• Is undergoing, or
• Has undergone a process to change their gender.

Importantly, no GRC is required to benefit from these protections. Trans individuals can still bring claims for discrimination or harassment based on their transgender status.

Additionally, claims may be possible based on perceived sex. For example, a trans woman (a biological male) may bring a claim for sex discrimination if treated unfairly due to being perceived as a woman.

What Should Employers Do Now?

Employers must ensure they uphold standards of dignity, respect, and equality in the workplace. Here are key steps employers should consider:

1. Review Workplace Culture and Training

• Reinforce that discrimination, harassment, or degrading treatment of trans colleagues will not be tolerated.
• Consider providing or updating anti-harassment and inclusion training, with a focus on gender identity.

2. Update Policies

• Review your existing anti-harassment and dignity at work policies to ensure they are inclusive of transgender individuals.
• Consider drafting or adopting a gender identity policy.

3. Reassess Facilities Access

One area of growing concern is access to toilets and changing facilities. The Equality and Human Rights Commission (EHRC) has issued interim guidance stating:

• Trans women (biological males) should not use women’s facilities.
• Trans men (biological females) should not use men’s facilities.

However, it also advises that trans individuals should not be left without any facilities. Where possible, gender-neutral or mixed-use facilities should be provided in addition to same-sex ones.

Practical Tips:

• If your toilets or changing areas are individual, self-contained, and lockable, they can be designated as gender-neutral, regardless of whether they are labelled for men or women.
• For multi-user, communal facilities, employers should follow the Court’s guidance on access based on biological sex.

Decisions regarding access to single-sex services or spaces beyond toilets and changing rooms should be made case-by-case, with further detailed EHRC guidance expected soon.

Need Help Reviewing Your Workplace Policies?

The recent Supreme Court ruling is a timely reminder for employers to ensure they are legally compliant while fostering an inclusive work environment.

For support with:

• Reviewing your existing workplace policies,
• Drafting a new gender identity policy, or
• Providing training on the implications of the ruling,

Contact our Employment Team at:
employment@warnergoodman.co.uk or call us on 023 8071 7717.