Supreme Court rules on definitions of ‘Woman’ and ‘Man’ within the Equality Act

You have probably seen widespread coverage of the Supreme Court’s decision in the case of For Women Scotland v The Scottish Ministers. This was not an employment law case but the decision does have potential ramifications for the workplace.

What was the case about?

The case was brought by the campaign group For Women Scotland against the Scottish government over legislation aimed at ensuring 50% representation of women on public boards in Scotland. Guidance produced by the Scottish government stated that a trans woman with a GRC would be treated as a woman and therefore included in figures for meeting this 50% threshold. For Women Scotland challenged this on the basis that it did not recognise the protection of biological sex under the Equality Act.

After many rulings within the Scottish courts, the Supreme Court has now ruled that the definitions of man, woman and sex for the purposes of the Equality Act 2010 mean biological sex and therefore does not include an individual with a Gender Recognition Certificate (GRC). Whilst the Gender Recognition Act of 2004 states that it changes a person’s gender for all purposes, this is not so where it is contrary to other legislation.

It is important to recognise that the decision addresses only the narrow issue of the relevant definition in the Equality Act, but it could have wider implications in areas such as access to single-sex spaces (e.g. domestic abuse services, hospitals and changing facilities) and participation in sports.

What does this decision mean for employers?

The Supreme Court was clear in delivering its judgment that this should not be seen as a “victory” for any party in the case. This is a complex and often controversial area.

The Court emphasised that gender reassignment remains a protected characteristic within the Equality Act and full protection remains against discrimination and harassment at work. Furthermore, they confirmed that this decision does not reduce trans people’s protections from discrimination, whether or not they have a GRC. Remember that 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. Indeed, 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.

However, there would now appear to be some tension between the ruling and the current position in respect of single sex spaces, and the Equality and Human Rights Commission is understood to be working on an updated Code of Practice to be published later in the year. There were already exceptions to the use of single sex spaces and access to some services and these are likely to be further examined.

You may find that heightened attention to this case means that staff are discussing issues more openly. As always, it is important that all views are respected and that no protected characteristic takes precedence over another. Managing conflicting beliefs remains an ongoing task, and we expect to see more cases in this area. Social media usage policies and codes of conduct are also likely to help you here.