The UK Supreme Court recently ruled the legal definition of a woman is based on biological sex.
The case centred on whether trans women with a Gender Recognition Certificate (GRC) could be considered “women” for the purpose of gender representation on public boards.
The Scottish Government’s Gender Representation on Public Boards (Scotland) Act 2018 had sought to include trans women within its 50% female quota.
The landmark decision could have far-reaching implications for who can access single-sex services and spaces including toilets and changing areas.
Many businesses are already looking at whether they have appropriate provision in place through unisex provision or separate cubicles that can be used by anyone.
Harriet Gardner, solicitor in the employment team at Wake Smith, looks at the key findings from the Supreme Court.
“The judges had to decide whether the legal definition of “sex” referred to biological sex or gender identity.
“They ruled the definition of sex, as used in the Equality Act 2010, is decided by biological sex, not gender identity. It was decided that a person who was not born as a biological female cannot obtain the legal protections the Act affords to women by changing their gender with a Gender Recognition Certificate.
“The protected characteristic of gender reassignment remains in place and continues to offer trans individuals legal protection from discrimination under the Equality Act.
“The Supreme Court found that public authorities and employers cannot redefine “woman” for policy purposes beyond what the Equality Act allows.
“This ruling brings clarity on the law, but it is still indistinct what day-to-day differences it will make and it will be very interesting to see how it progresses.”
With regards to employers, the ruling provides legal clarity but also presents a challenging landscape for those aiming to support both sex-based rights and trans inclusion.
The ruling does not permit discrimination against trans employees, and employers must continue to uphold protections under the Equality Act’s gender reassignment provisions.
However, it does mean a legal distinction between the protected characteristics of sex and gender-reassignment. Organisations cannot redefine protected characteristics beyond their statutory meaning, even with the best of intentions.
Are you an employer who needs guidance on telling employees about this ruling or equality measures?
Employers should look to:
- Audit policies, contracts, and internal documents for compliance with the Equality Act as interpreted by this ruling, whilst remaining committed to equality, diversity and inclusion.
- Train HR teams and line managers on the implications of this decision.
- Consider legal advice when developing or updating equality strategies involving sex or gender-based provisions.
For more information call Harriet Gardner at Wake Smith Solicitors on 0114 223 2726 or email [email protected]