The Equality and Human Rights Commission (“EHRC”) has now issued interim guidance on the practical implications of the Supreme Court’s recent landmark judgment in the case of For Women Scotland v The Scottish Ministers. This considered whether the meaning of a “woman” under the Equality Act 2010 also applies to transgender women (who are biologically male at birth) with a gender recognition certificate.
The For Women Scotland v The Scottish Ministers case arose as a result of a Scottish Government initiative which aimed to improve female representation across public sector boards. The Scottish Government included transgender women with a gender recognition certificate (“GRC”) within the meaning of a “woman” in their guidance, whilst also suggesting that this mirrored the definition of a woman under the Equality Act 2010 (“EqA”). This effectively extended the right for those with a GRC to access single-sex services for the sex that they identified with, as opposed to their biological sex at birth.
The campaign group For Women Scotland challenged the guidance and argued that it undermined the protection against sex discrimination afforded under the EqA, and that someone’s sex should not be interpreted in light of a GRC.
In its recent landmark judgment, the Supreme Court ruled that the terms “man”, “woman” and “sex” under the EqA refer to biological sex, and therefore a GRC does not redefine a person’s sex for the purposes of the EqA. The Supreme Court said that incorporating a GRC into the determination of gender would disrupt the orchestration of the EqA, particularly for sex-based protections such as equal pay, pregnancy and maternity. Other considerations included:
The Supreme Court did however emphasise that the EqA protects trans people from discrimination under the term “gender reassignment” regardless of whether they hold a GRC, and so this judgment does not reduce the protection which is afforded to trans people.
The EHRC has now issued interim guidance on the practical implications of the Supreme Court judgment, which can be accessed here. Although the guidance is brief, the key points to take away are that:
Unfortunately, the EHRC guidance does not establish how to reach a balanced practical approach where an employer does not have sufficient facilities. Employers could therefore face sex discrimination claims from cis-gender people and/or gender reassignment discrimination claims from trans people if the right balance is not struck. The issues will be different for each employer, depending on the nature of the workplace and the facilities and resources available; however in the absence of clear guidance from the EHRC, employers are likely to face practical difficulties in the short-term.
The EHRC aims to provide updated statutory and non-statutory guidance to provide more clarity around the consequences of the judgment going forward, as well as an updated Code of Practice.
In the meantime, employers should be mindful of the clear distinction between biological sex and gender reassignment under anti-discrimination laws, and try to ensure that sufficient protections are afforded to all employees where possible, whilst being mindful that some employees may have strong personal feelings about this judgment.
Hannah Ball comments:
This is a complex case which establishes a core principle of the Equality Act 2010: that whether someone is a “man” or a “woman” is determined by biological sex. However, it is important to remember that the protection of trans people against discrimination on the ground of gender reassignment remains intact and has not been depleted by this judgment. Although the judgment provides some clarity, it also poses new issues for employers to navigate whilst they seek to establish a “new normal”, such as the provision of appropriate facilities. In spite of the EHRC’s interim guidance, the position for employers remains somewhat unclear, and the further EHRC guidance and updated Code of Practice will be hotly anticipated. In the meantime, it will be interesting to see how the ramifications of this judgment manifest in the workplace and future Employment Tribunal claims.
If you have any questions about the Supreme Court’s judgment or discrimination in the workplace, please contact a member of the team here.
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