The UK Supreme Court yesterday delivered a landmark ruling in For Women Scotland Ltd v The Scottish Ministers, clarifying that under the Equality Act 2010, the terms “woman”, “man” and “sex” refer exclusively to biological sex.
The ruling follows years of debate and legal uncertainty due to conflicting interpretations of whether “sex” in law should refer exclusively to biological sex or should also encompass gender identity.
The decision is set to have significant implications for UK employers, particularly concerning employment law and HR practices.
Supreme Court ruling
The Supreme Court unanimously determined that the Equality Act 2010′s references to “woman”, “man” and “sex” pertain to biological sex assigned at birth, and not to gender identity or legal gender recognition. As such, transgender individuals, including those with a Gender Recognition Certificate (GRC), are not encompassed within the legal definitions of “woman” or “man” for the purposes of sex-based rights under the Act.
The newly-clarified interpretation applies to provisions concerning single-sex services and spaces, such as hospital wards, shelters and sports teams, as well as wider workplace policies and guidelines relating to sex-based matters.
The ruling does not remove existing protections for transgender people, nor does it negate the protections afforded to transgender individuals under the protected characteristic of gender reassignment in the Equality Act. However, it will clearly have consequences for how employers apply the law in practice.
Implications for UK employers
From an employment law and HR perspective, the ruling will necessitate a thorough review of workplace policies, practices and facilities. It may also be appropriate to undertake a stakeholder engagement process, consulting with employee representatives and diversity groups to discuss the implications of the ruling and gather feedback before implementing any changes.
For example, for most employers, the decision will require a review of single-sex spaces in light of the clarified legal definitions. In practical terms, this means employers who provide single-sex facilities, such as toilets, changing rooms or sleeping accommodation, may now lawfully restrict access to those spaces based on biological sex. However, the judgment does not require employers to exclude transgender individuals from such spaces. It confirms that doing so is legally permissible, provided it is a proportionate means of achieving a legitimate aim, but it is not mandatory. Employers will need to carefully consider how their policies are drafted and implemented, particularly where the use of single-sex spaces may be challenged or controversial.
In the context of recruitment, employers may also be able to specify that a role must be filled by a person of a particular biological sex if they can demonstrate that it is a genuine occupational requirement. This is likely to be relevant in certain sensitive roles, such as those involving counselling or personal care. However, any such requirement must be objectively justified and proportionate. Existing roles that were previously designated for a specific sex based on gender identity should also be reevaluated in terms of occupational requirements to ensure they align with the new biological sex criterion.
Equality and diversity policies will also need to be updated to reflect the legal definitions of sex, while maintaining protections against discrimination for transgender individuals. Employers must be clear that while “sex” refers to biological sex, protection from discrimination on the grounds of gender reassignment remains firmly in place.
Training and internal communications will be important in helping HR teams and line managers understand the distinction between sex and gender reassignment in law, and how to apply that distinction in a way that is both lawful and respectful. Training content should be reviewed and updated where required so that staff understand the distinction between biological sex and gender identity in the context of the Equality Act, and importantly – any policy changes should be communicated to all employees.
Need assistance?
While the Supreme Court has clarified the meaning of sex under the Equality Act, it is now for employers to take action to ensure their policies, practices, facilities and communications are legally compliant, proportionate and sensitive to the rights of all staff.
We expect guidance to follow from the Equality and Human Rights Commission (EHRC) and other relevant bodies that should provide more pragmatic information on what is expected and required of employers to remain compliant with their obligations.
Fundamentally, employers should look to balance legal compliance with inclusivity in support of the rights and dignity of all employees. For specialist guidance on how to navigate these changes, ensuring decisions affecting transgender employees are made with appropriate sensitivity and legal advice, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
