The Supreme Court has given a judgment saying that the Equality Act definition of "sex" is based on biology, while emphasising that trans people are protected from discrimination. We explain why this should not change how employers approach discrimination and harassment at work.
A long-running case about the definition of men, women and sex under discrimination law has concluded with the Supreme Court saying that the Equality Act 2010 definition of sex refers to biology. In short, the Court says that various provisions in the Act relating to sex don't make sense unless they are read as biological sex, but that doesn't remove protection from discrimination for trans people. There has been a lot of press comment on the implications of this decision, but our view is that it should not change what employers have already been doing to balance the rights of different groups in the workplace. This article does not consider provision of services, which is dealt with in a different part of the Equality Act from employment.
What was the case about?
This case was all about the relationship between discrimination law and the rights of trans people to obtain a gender recognition certificate (GRC). The Equality Act prohibits sex discrimination against both women and men in various settings, including the workplace. The Gender Recognition Act 2004 allows a trans person to obtain a GRC, which changes their gender for "all purposes" subject to limited exceptions. But does this mean that a GRC changes a person's sex for all purposes in the context of discrimination law? This question is distinct from the issue of protections for trans people under the Equality Act. These are set out in specific provisions (referred to as gender reassignment discrimination) which do not deal with the effect of a GRC (or require one in order for a trans person to have the relevant protections).
The Scottish Parliament had issued guidance on a law about gender representation on public boards which said that the definition of a "woman" was the same as under the Equality Act. The guidance went on to say that a person with a GRC recognising that their gender is female is considered a woman under the gender representation law. The group For Women Scotland challenged the lawfulness of this guidance, on the basis it did not recognise the protection of biological sex under the Equality Act. They argued that a GRC should not change someone's sex when applying discrimination law rights to women and men.
Although the case wasn't specifically about employment law, the outcome impacts all areas where sex discrimination law is relevant, including the workplace.
How the Supreme Court defines sex in the Equality Act
The Supreme Court has said that the definitions of man, woman and sex in the Equality Act all refer to biological sex (although the judgment does not define what this actually means). This approach means that someone with a GRC does not become their "certified sex" (i.e. sex as affirmed by a GRC) for the purposes of discrimination law. The main conclusions from the Court's 88-page judgment are:
- The original law on sex discrimination from 1975 used the words "man" and "woman" to refer to biological sex. Later regulations added protection from discrimination for trans people, but did not amend the definitions of man and woman. The Equality Act 2010 replaced these older laws but did not alter these definitions.
- A GRC changes a person's gender "for all purposes", but not where it is disapplied by other legislation. The Equality Act does disapply this rule, because otherwise it would cut across the protected characteristic of sex in an incoherent way.
- The Equality Act must be interpreted in a clear and consistent way so that protected groups can be identified and obligations in relation to those groups can be performed in a practical way. The Court concluded that it would not be appropriate to have different definitions of sex for different parts of the Equality Act.
- Examples of why a biological sex interpretation is necessary include the provisions on pregnancy and maternity, separate spaces and single sex services, communal accommodation, single sex associations and charities, and women's fair participation in sport.
The Court emphasised that this decision does not reduce trans people's protections from discrimination, whether or not they have a GRC. The Equality Act expressly prohibits discrimination and harassment against trans people, and it is not necessary to have a GRC in order to be protected. A trans person may also be protected from direct sex discrimination and harassment because this applies to perceived sex as well as biological sex. For example, a trans woman who is refused a job because she is perceived to be female would still have a direct sex discrimination claim, although this may impact the way that claim was considered.
Likewise, trans people who wish to bring sexual orientation discrimination claims can do so because the test is unwanted conduct "related to" sexual orientation, which does not require the victim of harassment to define their actual sexual orientation in a particular way. A trans person can also claim indirect sex discrimination, as this now applies to anyone who experiences the same disadvantage as a group sharing a protected characteristic (following amendments to the Equality Act in 2023 which we explain here).
Implications for employers
There are some important things to note about the limits of this decision.
Firstly, it is focussed on the fairly narrow issue of the impact of a GRC on the Equality Act provisions. The majority of trans people do not have a GRC, and it is not currently possible to obtain a GRC for non-binary gender identities. The argument was all about whether someone with a GRC becomes their certified sex for all purposes under the Equality Act. It was not about the position of other trans people, or about the protections for trans people more broadly. The Court was concerned that a different decision would create a difference in rights between trans people who did and did not have a GRC.
Secondly, the decision is quite a technical analysis of the meaning of words in the Equality Act. It is not a wider decision about the interpretation of other legislation, or whether "sex" means "biological sex" in other contexts.
The decision only has limited implications for employment law. Relevant areas include:
- Pregnancy and maternity. The definition of biological sex means that a trans man (with or without a GRC) who becomes pregnant will still have all the same pregnancy and maternity rights as others, and cannot be discriminated against due to pregnancy or maternity leave. The Equality Act provisions on pregnancy and maternity specifically apply to "women".
- Equal pay. This is an area that the Supreme Court recognised was problematic. The equal pay rules currently require a comparison between a woman and a man. If this is based on biological sex, it means that a trans woman with a GRC cannot compare herself with a cis man for these purposes (likewise a trans man could not compare himself with a cis woman). She could, however, bring a direct sex discrimination claim about pay instead (based on the perception that she is female).
- Gender pay gap reporting. The regulations on pay gap reporting were made under the Equality Act and use the words "male" and "female", so it seems this will now mean the biological definition of these terms. In practice, however, current government guidance says it is important to be sensitive to how an employee defines their gender, and to rely on anything else throws up significant practical challenges, although it would appear to be in line with the Court's judgment. The guidance suggests using information employees have already provided (such as HR or payroll records), and employees can be excluded from the calculations if they do not self-identify as either male or female. Employers are likely to continue compiling these statistics in the same way (particularly as you may not know and it is inappropriate (and could create legal risk) to require someone to share whether they are trans or have a GRC).
- General occupational requirements. The law here remains as it was previously. In limited circumstances an employer can require employees doing a particular job to be of a certain sex (for example, a changing room attendant). Trans people can potentially be excluded from these roles, even if they have a GRC. However, the employer must be able to justify the requirement in order to avoid it being unlawful discrimination, and the Court's decision does not change this.
- Single sex facilities in the workplace. As with genuine occupational requirements, the law has not changed. If employers choose not to provide single sex spaces they need to be able to justify this approach and they must be compliant with the requirements applying to gender neutral facilities. If employers do provide single sex spaces then (based on previous cases) it is likely to be gender reassignment discrimination to bar trans people from using the facilities of their choice. As this does not relate to GRCs, it is unaltered by the Court's judgment.
The biggest impact on employers may remain the challenge of managing tensions in the workplace. Widespread reporting and debate about the effects of the Supreme Court's judgment may make clashes within workforces more likely. We have written before about welcome guidance on proportionality on this issue from the Employment Appeal Tribunal, and the guiding principle must be ensuring that all employees treat each other with respect.
This is likely to be a difficult time for the trans community in particular, and employers may wish to reach out to their workforce.
For Women Scotland Ltd v The Scottish Ministers – press summary and judgment
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