The Supreme Court has reached a unanimous decision that the terms “man” and “woman” under the Equality Act 2010 only relate to a person’s biological sex.
Background
In 2018, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”), with the aim of increasing the proportion of women on public boards. The 2018 Act’s original definition of a “woman” included any person who:
- had the protected characteristic of gender reassignment;
- lived as a woman; and
- proposed to undergo, was undergoing, or had already undergone a gender reassignment process.
Further to a legal challenge brought by For Women Scotland (a campaign group with the stated aim of “working to protect and strengthen women and children’s rights”) that definition was found unlawful, on the basis that it dealt with matters that fell outside the jurisdiction of the Scottish legislature.
Following this, the Scottish Government issued new statutory guidance for interpreting the 2018 Act. The new guidance stated that the definition of a “woman” under the 2018 Act included any person with a gender recognition certificate (“GRC”) acknowledging their gender as female. The guidance also said that the 2018 Act’s definition was the same as that in the Equality Act 2010 (“the Equality Act”).
For Women Scotland challenged the lawfulness of the new guidance in the Scottish courts. Following the dismissal of this challenge and of a further appeal, For Women Scotland appealed to the Supreme Court so as to establish the correct interpretation of the Equality Act.
Supreme Court’s decision
The Supreme Court disagreed with the decisions of the Scottish courts. It found that, for the purposes of the Equality Act, the terms “woman” and “women” relate only to biological sex and accordingly a transgender person does not “change sex”.
The explanations given by the Supreme Court include the following:
- If transgender people were to be included within these definitions it would cut across the protected characteristic of sex “in an incoherent way” and render the Equality Act “impracticable to operate”, particularly in relation to sex-based protections such as pregnancy and maternity leave.
- The Equality Act needs to be clear and consistent to ensure that it remains effective.
- Transgender individuals will still be protected under the Equality Act as gender reassignment remains a protected characteristic (and this is separate to sex).
- Discrimination because of gender reassignment remains unlawful and this includes direct or indirect harassment by association or by perception.
The Supreme Court was keen to make clear that its decision was a matter of legal interpretation, rather than a taking of sides in a wider public debate. It also highlighted that trans people remain protected under the Equality Act, due to the protected characteristic of gender reassignment. Nevertheless, the practical consequences may be widespread.
What does this decision mean for employers?
Following this decision, the Equality and Human Rights Commission (“EHRC”) has confirmed that it will be updating the statutory Code of Practice on Services, Public Functions and Associations. A period of consultation has commenced and will continue until 30 June 2025, giving all stakeholders an opportunity to offer their thoughts. In the meantime, the EHRC has provided some interim guidance on the practical implications of the Supreme Court’s decision.
The interim guidance sets out that employers must provide single-sex toilets, as well as single-sex washing and changing facilities (where needed). However, mixed-sex facilities should also be provided, where possible.
The guidance also states that employers should ensure that trans women (biological males) are not permitted to use the women’s facilities, and that trans men (biological females) are not permitted to use the men’s facilities.
This “bathroom” point has been one of the more hotly contested topics in the debate around trans issues. Groups like For Women Scotland have made clear their discomfort at trans women (biological males) being present in women’s bathrooms (there is a paragraph on this on their website). However, it is not clear whether they would in practice be any more comfortable with a trans man – who may appear to them to be biologically male (and who may have even undergone associated surgeries) – using women’s bathrooms.
Perhaps in anticipation of this, and somewhat confusingly, the guidance goes on to say that, in some circumstances, it will be appropriate for trans women (biological males) to not be allowed to use the men’s facilities, and for trans men (biological female) to not be allowed to use the women’s facilities. However, the guidance also makes clear that trans people must not be put in a position where there are no facilities available for them to use – which would indicate that it may sometimes be necessary to have a “third space” toilet, as proposed on For Women Scotland’s website.
The interim guidance does not provide much further practical guidance for employers, but we expect the position to become clearer once the consultation has concluded and the Code of Practice has been updated.
Of course, it remains of the utmost importance that employers treat their trans staff with respect and dignity, ensuring that they are protected from discrimination and harassment. It is also worth being cognisant of the emotional impact that this decision may have had on some trans members of staff, and that they may be feeling particularly vulnerable as a result of the judgment and the surrounding media coverage.
Although we will have to wait for the updated Code of Practice to be published, the ramifications of this decision are likely to be far-reaching. We would urge all employers to review their equal opportunities, inclusion and anti-discrimination policies, to ensure that these are up to date and reflect the latest legal position and best practice guidance.
If you would like any assistance with reviewing your policies, please get in touch at [email protected].
