The Supreme Court has handed down a widely reported judgment which decided that the definition of “woman”, “man” and “sex” under the Equality Act 2010 (“EA 2010”) refers to biological sex. A gender recognition certificate (a legal document that recognises an individual’s gender identity) does not change a person’s sex for the purpose of equality laws.
The decision will have practical impact on numerous day-to-day issues in the workplace, and across wider society, such as the provision of single sex facilities and services and data collection. However, despite the sweeping news headlines, there have been sensible warnings against over-interpreting the ruling. While the decision will undoubtedly have consequences, employers are reminded that the EA 2010 still protects trans people from harassment and discrimination in the workplace on the grounds of gender reassignment and perceived sex, and that employers owe a duty of care to all their employees. The decision does not change that.
Background
The EA 2010 defines the protected characteristic of “sex” as meaning either a man or a woman. The Gender Recognition Act 2004 established that trans people with a gender recognition certificate are to be considered their acquired gender for all purposes. The issue to be determined was whether someone with a gender recognition certificate was able to rely on their acquired sex, or whether the definition of “sex” was limited to their biological sex. That question has been the subject of a long-running dispute in the Scottish Courts which was resolved by the unanimous decision by Judges in the Supreme Court. In short, they had to decide on the legal meaning of the terms, “man”, “woman” and “sex”.
The decision
The Supreme Court held that:
- The terms man, woman and sex refer to biological sex.
- A gender recognition certificate does not change a person’s sex for the purposes of the EA 2010.
The ruling is helpful in that it provides greater clarity on the meaning under the EA 2010. It also makes it clear that if a space or service is designated as women-only, a person who was born male but identifies as a woman does not have a right to use that space or service.
Action for employers to take now
Employers should keep in mind that the EA 2010 continues to provide transgender people with protection from direct and indirect discrimination and harassment through the protected characteristic of gender reassignment. Employees, workers, self employed consultants and job applicants are all covered by discrimination legislation. The EA 2010 already prohibits discrimination against a person linked to their transgender status, including the fact they are going to transition their gender, are proposing to do so, or have completed that process – a male-to-female transgender employee being treated less favourably than a biological woman is still prohibited. The protection applies early in the process, by including an individual who is proposing to undergo a gender reassignment process, as well as those undergoing a process and those who have changed gender. The EA 2010 has specific provisions to ensure that where an individual needs time off or is absent due to the transition process, they are treated consistently with other staff and not denied that time off because of the reason for their absence.
Employers must also take steps to avoid harassment, for instance where hostile treatment occurs against a transgender person. Comments made about a trans person which are linked to their transgender status could be unlawful harassment based on their protected transgender characteristic.
Transgender people can already claim they have been discriminated against on the grounds of their sex, because they are perceived to be their acquired gender.
There are also strict laws which protect an individual who holds a gender recognition certificate giving them privacy rights and restricting the use of any information about their previous gender as special data; this protection applies in the workplace and to those providing services. This decision does not change that.
There are questions around equal pay claims, which currently are only to be pursued based on biological sex. This means that a trans woman, for example, will not have the right to bring an equal pay claim on the basis that she is paid less than a (biological) man.
Training managers and staff is vital, to ensure managers and teams understand the up-to-date position on rights and obligations.
The Equality and Human Rights Commission will be issuing a new code of conduct for services “at pace”, which we await. For now, we recommend that employers:
- Plan for and arrange training on diversity and inclusivity in the workplace.
- Update any gender-related policies to ensure that any definition of “woman” or “man” is in relation to biological gender without reference to those who have obtained a gender recognition certificate.
- Listen to any concerns from employees around the decision and provide assurances that equality is still promoted in the workplace.
- Circulate policies on discrimination and harassment, to remind people that this is not tolerated.
- Consider appointing someone who is trained and up to speed, as a champion, and to signpost support to any employees feeling concerned with the implication of what this might mean on a day-to-day basis.
For public bodies, many will be reviewing their approach. The EA guidance already allows for women-only spaces, such as toilets, changing rooms and hospital wards in certain circumstances. The guidance provides that this can be for “reasons of privacy, decency, to prevent trauma or to ensure health and safety.” Where appropriate, some organisations can already point to this to justify single-sex spaces.
Conclusion
It is important that employers appreciate the significance of the Supreme Court judgment and that it is limited to a specific point regarding the definition of “woman”, “man” and “sex” in the EA 2010. It does not remove or change an employer’s obligations in respect of equality in the workplace or the duty of care owed to all employees.
