Supreme Court ruling on trans rights: What employers need to know

Supreme Court ruling on trans rights: What employers need to know

In a case which has caused significant controversy, the Supreme Court held that the words ‘sex’, ‘woman’ and ‘man’ in the Equality Act 2010 (‘EA’) refer to biological sex, biological woman and biological man, regardless of whether someone holds a Gender Recognition Certificate (‘GRC’).

Background

A feminist organisation, For Women Scotland Ltd, challenged the existing definition of ‘woman’ in 2020. Following the challenge, Scottish Ministers issued new guidance which stated that the definition of a ‘woman’ included a person with a GRC which recognised their gender as female.

For Women Scotland Ltd did not agree with this interpretation and maintained that the definition of a ‘woman’ refers to biological sex. Therefore, in their view, a trans woman with a GRC should not be considered a woman under the EA.

For Women Scotland Ltd’s case was dismissed in 2022, it appealed, and the case was dismissed again in 2023. The appeal then went to the Supreme Court.

Decision

The Court ruled that under the EA, the terms ‘man’, ‘woman’, and ‘sex’ refer only to biological sex. However, according to the Supreme Court, its conclusion ‘does not remove or diminish the important protections available under the Equality Act 2010 for trans people’ as trans individuals remain protected against discrimination and harassment due to gender reassignment being a protected characteristic under the EA.

The impact

Whilst the Supreme Court’s decision provides clarity with regards to legal definitions, practical issues remain and are indeed now more complex, particularly when the question is asked about which changing facilities and toilets transgender people should use. The decision has also caused a lot of concern and upset in the LGBTQIA+ community.

The Equality and Human Rights Commission (‘EHRC’) updated their guidance following the decision and it states that:

• Trans women should not be permitted to use women’s facilities and trans men should not be permitted to use men's facilities, but trans people should not be put in a position where there are no facilities for them to use.
• Toilets, showers and changing facilities could be mixed-sex where they are in a separate room lockable from the inside.

A challenge for employers is striking the right balance when implementing an approach which aligns with the recent judgement without unlawfully discriminating against trans individuals, particularly where space and facilities are limited. Despite the guidance, if trans women are not permitted to use women’s facilities and trans men are not permitted to use men's facilities, they could still bring discrimination claims. Likewise, if they are allowed to use the facilities of the sex they identify with other employees could potentially bring claims and indeed there are several such cases being pursed in the employment tribunal at the moment.

Employers should take the following into consideration in light of the Supreme Court decision:

• Employee support: Recognise that the judgment may have caused concern or distress, particularly among trans employees and their allies. Employers should be sensitive to the potential impact and consider taking proactive measures to support affected individuals and to promote a respectful and inclusive workplace culture including reviewing policies and providing training.

• Facilities: In light of the EHRC guidance, evaluate current facilities to determine the extent of compliance. Where mixed-sex facilities are not presently available, legal advice should be taken and consideration given to whether existing spaces could be redesignated, or whether such provision can be incorporated into future refurbishment or relocation plans.

• Legal protections: Reaffirm your organisation’s commitment to upholding the protections afforded to trans individuals under the EA. Ensure that any incidents of discrimination or harassment are addressed promptly and in accordance with existing grievance and disciplinary procedures.

Get in touch with our Employment Team for further advice.