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.

We have updated this article since it was first published in light of developments in the last few days around the provision of single-sex services.

This predates the EHRC interim guidance issued late on 25 April. See our thoughts on the position following the EHRC interim guidance.

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 – we explain this difference further below in the section on single-sex facilities.

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 harassment 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 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

We have updated this article since it was first published in light of developments in the last few days around the provision of single-sex services. The Equalities Minister Bridget Phillipson has been quoted as saying the ruling was clear that provision of services should now be accessed on the basis of biological sex, and made a statement in the Commons to that effect. The Equality and Human Rights Commission has said their single-sex services guidance will be reviewed as a matter of urgency.

These developments all relate to service providers, which are allowed to provide certain services to the public on a separate or single-sex basis. This covers, for example, leisure centres providing separate changing rooms, charities providing services to women only, or local authorities providing public toilets. The Equality Act expressly says that providing single-sex services is neither sex discrimination nor gender reassignment discrimination if certain conditions are satisfied. 

Employers, however, are in a different position. The rules for employment are in a different part of the Equality Act. Those rules make no explicit allowance for the provision of single or separate sex facilities to employees and (crucially) give employers no equivalent protection from trans-related discrimination claims. It has long been the case that an employer’s responsibilities in this area were unclear, involving a balancing act between the rights of different groups and risking legal claims from all sides.

We remain of the view that the position for employers remains unsatisfactorily unclear, as it was before the Supreme Court’s judgment. There are risks to employers whatever they choose to do at the moment, and it is not as simple as just specifying that single-sex facilities in the workplace are now based on biological sex. Here’s why.

  • The only legal requirement on employers in relation to single-sex facilities is in workplace health and safety legislation from 1992 (separate from the Equality Act). This requires employers to provide separate toilet and changing facilities for men and women, unless each toilet is in a separate room that can be secured from the inside (i.e. a room not a cubicle). There is no definition of “men” and “women” in these rules and the Supreme Court’s judgment expressly stated it was not defining the meaning of these words other than in the Equality Act. In any case, even if they are now interpreted in the same way, unfortunately this does not provide a reliable answer for employers.
  • If an employer provides single-sex facilities and allows trans people to use the ones of their choice, it has always been the case that women (or men) could complain that this was discriminatory (most likely based on sex or religious or philosophical belief), or failed to respect their dignity or privacy. The Supreme Court’s focus on biological sex will make such complaints, and potentially claims, more likely in the event an employer takes this approach.
  • If an employer provides single-sex facilities and trans people are barred from using the ones of their choice, then gender reassignment discrimination and harassment claims are still possible. There are cases which have considered this, including a Court of Appeal decision on direct discrimination from 2003 (Croft v Royal Mail Group Plc). The case predates GRCs and the Equality Act with its definition of gender reassignment, and was unhelpfully ambiguous on when a trans person might become entitled to access their chosen single-sex facilities - but it did confirm there was a point in the transition process where it could become direct discrimination to prevent them from doing so. This case might be interpreted differently following the Supreme Court’s decision, but was not expressly overruled.
  • The law in this area has never been clear because of the difficulty in defining the correct comparator in a gender reassignment discrimination claim. The law gives trans people the right not to be discriminated against or harassed because of gender reassignment but does not spell out whether their comparator for this purpose should be a cis man or a cis woman. The Supreme Court’s judgment says that the correct comparator for a trans woman is “likely” to be a cis man (and vice versa), referring back to the Croft case, but acknowledges that sometimes the sex of the comparator will be irrelevant and does not apply this analysis to single-sex facilities in the workplace. Direct gender reassignment discrimination claims about exclusion from same-sex facilities may now be more difficult, if the correct comparator is someone with the same biological sex. But indirect discrimination claims could potentially be based on the group disadvantage caused by trans people being excluded from using their chosen facilities (which the employer would then need to justify) – and harassment claims do not require any comparator at all.
  • There is a separate risk of harassment claims from trans employees who may find a policy of excluding trans people from single-sex facilities of their choice degrading. The current law both demands that employers do not discriminate against or harass trans people and contains no defence for employers along the lines of the defence that applies to service providers as regards single or separate sex facilities. This poses significant practical challenges for employers.
  • A key practical point is what happens if, for example, a trans man who is not known by colleagues to be trans, and has been using the male facilities for many years without any complaints or questions, is suddenly required to use the women’s toilets. An employer who immediately decides to limit facilities such as toilets to biological sex could still face grievances and direct or (more likely) indirect discrimination or harassment claims from trans employees, irrespective of the Supreme Court’s judgment – particularly if no suitable gender-neutral facilities are available. Similarly, women might well feel uncomfortable and object to a trans man using women-only facilities, and men might have similar objections to using facilities in front of trans women.
  • If this leaves trans employees required to use only limited accessible facilities (which tend to be gender neutral), then both the trans employees and any disabled employees who need to use those accessible facilities may still complain. It is likely to be inappropriate (and may give rise to claims) to require trans employees to use a single “accessible” toilet as opposed to facilities that are genuinely regarded as gender neutral, and this also limits provision for disabled employees. There is no guidance on what employers should do if they do not have any gender-neutral toilets, and that is very often the case for changing facilities - with no clear practical solution as to which facilities trans employees are then to use.
  • Finally, there are significant practical challenges with implementing a requirement for trans people not to use single-sex facilities. Aside from the employee relations and culture issues this presents, in many cases employers will simply not know whether an employee is trans, nor have any way of knowing. The Supreme Court judgment offers no guidance on how this should be addressed, and how discrimination based on gender reassignment can be avoided in that context. 

This remains a difficult and divisive issue. This article does not attempt to definitively state the law after the Supreme Court’s decision, or say who can and cannot bring successful legal claims. Our main point is that, unfortunately, the Supreme Court’s judgment has not significantly helped employers to comply with the law and do the right thing by different groups in the workplace when it comes to single-sex facilities. New statutory guidance on the workplace is needed urgently so that employers can act confidently – and the promised updated guidance for service providers on single-sex services (rather than on employment) will not suffice. This guidance needs to tell employers what the law now is, and also how to implement it in practice. Jumping to asking that trans people immediately start using different facilities may be unattractive to many employers, and could still give rise to complaints and even claims (without the defence for employers that applies to service providers), meaning employers can justifiably demand more authoritative guidance before being expected to change their current policy and approach.

Conclusions

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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