The recent Supreme Court decision on the meaning of "sex" in the Equality Act has been widely reported and generated much debate. Whilst the Court provided clarification on what "sex" means in the legal context, on a practical level the decision has given rise to some complex questions and considerations, not least for employers. Subsequent guidance from the Equality and Human Rights Commission (EHRC) has partially addressed some of these questions, but there are still many issues for employers to resolve.
What did the Court decide?
In this case (For Women Scotland Ltd v Scottish Ministers) the Supreme Court decided that "sex" in the Equality Act (EqA) means biological sex only (which does not include sex stated on a gender recognition certificate). The Court emphasised that the EqA separately expressly protects individuals from discrimination and harassment on the grounds of gender reassignment. The EqA also continues to provide protection from discrimination and harassment on the grounds of sex (which based on pre-existing case law would include not only biological sex but also the individual's perceived sex if this was the reason for the discrimination/harassment).
What does this mean for employers?
Many employers have previously taken their own decisions on how to classify gender in relation to their own internal arrangements, for example use of toilets or changing facilities, membership of diversity groups, or access to diversity related career progression schemes (e.g. mentoring schemes). Some employers have chosen to permit access to individuals with a gender recognition certificate, or those who identify differently from their birth gender. This case does not require employers to change these arrangements, but it clarifies that if they do choose to limit access to such facilities/groups/schemes to individuals based on biological sex this would not amount to sex discrimination under the EqA.
Following the Supreme Court decision, the EHRC published an interim update on the practical implications, which advises that employers should provide single-sex facilities available only to those of the same biological sex, and where possible provide mixed-sex facilities in addition to single-sex facilities. (The EHRC is currently updating all of its relevant publications in light of this case, so we can expect to see more detailed guidance in the next few weeks.)
It is worth noting that the EHRC recommendation is partly based on guidance from the Health and Safety Executive (HSE) on provision of single-sex facilities at work, but the HSE guidance does not say what "sex" means in this context (and the Supreme Court decision only applies to the Equality Act).
While the EHRC update goes further than the Supreme Court decision in terms of recommendations, neither provide a definitive answer for employers. There is a range of legal aspects which are not fully addressed by the Court decision or the EHRC update. If employers restrict access to single-sex facilities based on biological sex, then there could potentially (depending on the circumstances) be claims of discrimination or harassment on the grounds of gender reassignment from those newly excluded. If employers choose not to change their policies then we could envisage claims from those who feel strongly about the issue on religious or philosophical belief grounds or in relation to safe spaces for female employees. Aside from legal claims, there are also employee relations issues to consider (see below).
What steps should employers take now?
The appropriate steps to take will be different for different employers. There are strong feelings on all sides of the debate. Some employees may have been concerned about access to single-sex facilities and, in light of the EHRC update, may now ask employers to limit access based on biological sex only. Individuals who have changed gender or are in the process of doing so may feel anxious that they are being excluded from facilities which reflect the gender with which they identify. There is also increased risk that transgender employees may be more likely to face harassment following the Court's decision and some of the debate around it.
The arrangements which employers may want to consider include:
- Communications: What reassurance can you give to employees who may be worried about gender reassignment harassment following this case? What would you say to employees who may be concerned about safe spaces? What message would you give to employees about access to single-sex facilities and if relevant any proposed changes to access? What would you say to a trans employee who is unsure about which facilities to use? Should you remind staff of your anti-harassment policy and that protection applies on the ground of gender reassignment as well as sex and religion and belief?
- Policies: Do any other employment policies (e.g. diversity) address gender issues and if so do they require any changes or clarification? Do you have policies which clearly cover sex, religion and belief, and gender reassignment discrimination and harassment?
- Facilities: What is your current approach to use of facilities such as toilets or changing rooms? Have any issues arisen from this in the past? Would you wish to make any changes to access and if so why? Which employees might be adversely impacted by the current access arrangements or any proposed new access arrangements?
- Diversity groups: What diversity groups do you have in place and who is able to join them? Would you wish to add any new groups or make any changes to the individuals able to access them? Have any concerns or issues arisen in the past in relation to access to these groups?
- Consultation: Would this be a good time to carry out a staff survey on your diversity policies and arrangements? Do you have any sort of staff forum that you could talk to about the implications of this case? Should you set up meetings/communication channels with your diversity groups to seek their views?
Every workplace is different. Employers should take the steps which are most appropriate for their organisation, and where employees have opposing concerns, do their best to strike the right balance between them.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
