Despite the Supreme Court making clear that their judgement should not be seen as a victory for one group over another, both sides of the debate have already attempted to claim the decision as a victory for their particular stance on what is a particularly difficult social as well as legal issue.
In the immediate wake of the Judgement, organisations such as the Good Law Project have already launched a legal challenge to the judgement at the European Court of Human Rights.
Facts and lower court decisions
The Scottish Government passed the Gender Representation on Public Boards (Scotland) Act 2018 which defined “woman” as including a person who had the protected characteristic of gender reassignment within the meaning of the Equality Act 2010.
However, when challenged in the lower courts of Scotland, it was decided that this was of no legal effect because, as equality law is a reserved matter, it was outside of the Scottish Government’s power to make such a determination.
This resulted in litigation over whether the definition of ‘woman’ in the Equality Act 2010 includes only those who are women at birth or also extends to those with a Gender Recognition Certificate (GRC) in light of The Gender Recognition Act 2004’s provision that upon a full GRC being issued, a person’s sex becomes that of their acquired gender ‘for all purposes’. The matter proceeded until it reached the Supreme Court.
Supreme Court decision
The Supreme Court was tasked with answering a very specific question about whether the reference to “woman” in the Equality Act 2010 can be interpreted to include transgender women with a GRC.
The Supreme Court judgement was primarily focused on statutory interpretation with the court emphasising that the predecessor legislation to the Equality Act 2010, the Sex Discrimination Act 1975 assumed that the definitions of “man” and “woman” referred to biological sex and parliament had not indicated an intention that this was any different when the Equality Act 2010 was passed; furthermore parliament had not indicated that they intended the meaning of sex to be modified in accordance with the Gender Recognition Act 2004.
The court also highlighted the importance of clarity and consistency when interpreting the meaning of such fundamental terms as ‘man’ and ‘woman’ for the purposes of equality law. Being able to clearly identify who shares a particular protected characteristic is “essential to the practical operation of the Equality Act 2010” and the protected characteristic of sex needs to be “interpreted in a way which is predictable, workable and capable of being consistently understood and applied in practice.”
If organisations, including employers, were required to consider if someone had a protected characteristic on the basis of their knowledge of whether certain individuals possess a confidential GRC, this would be impractical for enforcing rights on a day-to-day basis. They also stressed that certain rights provided by the Equality Act only make sense if sex is given its biological meaning e.g. maternity leave and pay; given the presumption that words used more than once in the same legislation have the same meaning throughout and this had not been rebutted, the definition of woman must be biological in order to provide a consistent and predictable meaning.
Implications for employers
There has been a lot of debate in the immediate wake of the Supreme Court judgement about how the decision, that the definition of sex in the Equality Act 2010 as biological, will potentially disadvantage trans people and dilute their rights to equal treatment.
It is important to note that the judgement makes clear that transgender people continue to be protected under the protected characteristic of gender reassignment which begins when someone is proposing to undergo gender reassignment, whilst they undergo the process and after they have changed gender.
Here are some key considerations and ways employers should respond to this development:
- Transgender people will continue to be protected where they are discriminated against or harassed because of their perceived sex rather than because they are trans. As such, if an employee who, for the purposes of the Equality Act is biologically male is subject to discrimination because their employer believes they are female, they will be able to bring a claim for direct discrimination on this basis.
- Section 19A Equality Act 2010 protects employees who don’t share a protected characteristic from indirect discrimination when they suffer substantially the same disadvantage as those with a protected characteristic. As such, a trans employee could still bring a claim for indirect discrimination in relevant circumstances e.g. where an employee who is biologically male for the purposes of the Equality Act experiences menopause symptoms and therefore suffers the same disadvantage as menopausal biological women because of the employer’s PCP.
- Transgender employees will continue to benefit from protection if they suffer harassment related to their perceived sex, as test is whether conduct is ‘related to’ not ‘because of’ the protected characteristic.
- As the judgement has clarified that sex is biological for the purposes of the Equality Act, those employers with single sex policies in relation to changing rooms and toilet facilities will need to review their policies to ensure compliance and take advice accordingly.
Guidance is awaited on best practice for this issue, but the Supreme Court concluded that as the exceptions relating to the provision of single sex services in the Equality Act don’t distinguish between those who hold a GRC and those who do not, the intention must have been to allow for the exclusion of all those with the protected characteristic of gender reassignment.
This is because they might be essential for religious reasons or desirable for the protection of the safety, autonomy and dignity of biological women. If sex was not biological, employers and service providers would have the practical difficulty of distinguishing between trans women with a GRC and those without and it would be difficult to establish the conditions necessary for separate services.
If, in law, a service provider was required to provide services limited to biological women to trans women with a GRC even if they presented as biological men, it would be “difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men”. As such, an employer will be allowed to exclude trans women (biological men) from women’s toilets without the risk of a discrimination claim. - Other policies around pregnancy, maternity, family leave, gender identity and menopause may need to be reviewed and guidance is awaited on specific issues that might arise, for example, where a biological woman transitional to male and becomes pregnant, how should the law treat parental leave in this situation?
Ultimately, the judgement provides long-awaited clarity on the definition of sex for the purposes of the Equality Act and affirms that this means biological sex.
This was decided on the basis of statutory interpretation and ensuring that equality law is clear on fundamental definitions of protected characteristics, with the court making clear that a certified sex definition would lead to several practical difficulties for employers who would need to take steps to distinguish between employees with a GRC and those without one when implementing policies, which they held was neither feasible nor practicable.
The element of the judgement with the most impact will be the conclusion about single sex spaces. Whilst the judgement clarifies that the Equality Act allows for the exclusion of trans women (biological men) from women’s toilets, this is not a carte blanche for employers to discriminate in other ways.
We await guidance on how the court’s conclusion can be practically and sensitively implemented and employers should continue to ensure that they promote inclusive workplaces that champion the rights both of transgender employees and biological women.
The judgement is clear in upholding the rights of transgender employees not to suffer discrimination on the basis of either gender reassignment or their perceived sex and that they have the right to equal treatment under the law where it is proportionate and doesn’t undermine the equally important rights of women to safety and dignity.
If you wish to discuss anything mentioned in this article or any employment matters you may have please contact Matthew Ottley or a member of our employment team.
Despite the Supreme Court making clear that their judgement should not be seen as a victory for one group over another, both sides of the debate have already attempted to claim the decision as a victory for their particular stance on what is a particularly difficult social as well as legal issue.
In the immediate wake of the Judgement, organisations such as the Good Law Project have already launched a legal challenge to the judgement at the European Court of Human Rights.
Facts and lower court decisions
The Scottish Government passed the Gender Representation on Public Boards (Scotland) Act 2018 which defined “woman” as including a person who had the protected characteristic of gender reassignment within the meaning of the Equality Act 2010.
However, when challenged in the lower courts of Scotland, it was decided that this was of no legal effect because, as equality law is a reserved matter, it was outside of the Scottish Government’s power to make such a determination.
This resulted in litigation over whether the definition of ‘woman’ in the Equality Act 2010 includes only those who are women at birth or also extends to those with a Gender Recognition Certificate (GRC) in light of The Gender Recognition Act 2004’s provision that upon a full GRC being issued, a person’s sex becomes that of their acquired gender ‘for all purposes’. The matter proceeded until it reached the Supreme Court.
Supreme Court decision
The Supreme Court was tasked with answering a very specific question about whether the reference to “woman” in the Equality Act 2010 can be interpreted to include transgender women with a GRC.
The Supreme Court judgement was primarily focused on statutory interpretation with the court emphasising that the predecessor legislation to the Equality Act 2010, the Sex Discrimination Act 1975 assumed that the definitions of “man” and “woman” referred to biological sex and parliament had not indicated an intention that this was any different when the Equality Act 2010 was passed; furthermore parliament had not indicated that they intended the meaning of sex to be modified in accordance with the Gender Recognition Act 2004.
The court also highlighted the importance of clarity and consistency when interpreting the meaning of such fundamental terms as ‘man’ and ‘woman’ for the purposes of equality law. Being able to clearly identify who shares a particular protected characteristic is “essential to the practical operation of the Equality Act 2010” and the protected characteristic of sex needs to be “interpreted in a way which is predictable, workable and capable of being consistently understood and applied in practice.”
If organisations, including employers, were required to consider if someone had a protected characteristic on the basis of their knowledge of whether certain individuals possess a confidential GRC, this would be impractical for enforcing rights on a day-to-day basis. They also stressed that certain rights provided by the Equality Act only make sense if sex is given its biological meaning e.g. maternity leave and pay; given the presumption that words used more than once in the same legislation have the same meaning throughout and this had not been rebutted, the definition of woman must be biological in order to provide a consistent and predictable meaning.
Implications for employers
There has been a lot of debate in the immediate wake of the Supreme Court judgement about how the decision, that the definition of sex in the Equality Act 2010 as biological, will potentially disadvantage trans people and dilute their rights to equal treatment.
It is important to note that the judgement makes clear that transgender people continue to be protected under the protected characteristic of gender reassignment which begins when someone is proposing to undergo gender reassignment, whilst they undergo the process and after they have changed gender.
Here are some key considerations and ways employers should respond to this development:
- Transgender people will continue to be protected where they are discriminated against or harassed because of their perceived sex rather than because they are trans. As such, if an employee who, for the purposes of the Equality Act is biologically male is subject to discrimination because their employer believes they are female, they will be able to bring a claim for direct discrimination on this basis.
- Section 19A Equality Act 2010 protects employees who don’t share a protected characteristic from indirect discrimination when they suffer substantially the same disadvantage as those with a protected characteristic. As such, a trans employee could still bring a claim for indirect discrimination in relevant circumstances e.g. where an employee who is biologically male for the purposes of the Equality Act experiences menopause symptoms and therefore suffers the same disadvantage as menopausal biological women because of the employer’s PCP.
- Transgender employees will continue to benefit from protection if they suffer harassment related to their perceived sex, as test is whether conduct is ‘related to’ not ‘because of’ the protected characteristic.
- As the judgement has clarified that sex is biological for the purposes of the Equality Act, those employers with single sex policies in relation to changing rooms and toilet facilities will need to review their policies to ensure compliance and take advice accordingly.
Guidance is awaited on best practice for this issue, but the Supreme Court concluded that as the exceptions relating to the provision of single sex services in the Equality Act don’t distinguish between those who hold a GRC and those who do not, the intention must have been to allow for the exclusion of all those with the protected characteristic of gender reassignment.
This is because they might be essential for religious reasons or desirable for the protection of the safety, autonomy and dignity of biological women. If sex was not biological, employers and service providers would have the practical difficulty of distinguishing between trans women with a GRC and those without and it would be difficult to establish the conditions necessary for separate services.
If, in law, a service provider was required to provide services limited to biological women to trans women with a GRC even if they presented as biological men, it would be “difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men”. As such, an employer will be allowed to exclude trans women (biological men) from women’s toilets without the risk of a discrimination claim. - Other policies around pregnancy, maternity, family leave, gender identity and menopause may need to be reviewed and guidance is awaited on specific issues that might arise, for example, where a biological woman transitional to male and becomes pregnant, how should the law treat parental leave in this situation?
Ultimately, the judgement provides long-awaited clarity on the definition of sex for the purposes of the Equality Act and affirms that this means biological sex.
This was decided on the basis of statutory interpretation and ensuring that equality law is clear on fundamental definitions of protected characteristics, with the court making clear that a certified sex definition would lead to several practical difficulties for employers who would need to take steps to distinguish between employees with a GRC and those without one when implementing policies, which they held was neither feasible nor practicable.
The element of the judgement with the most impact will be the conclusion about single sex spaces. Whilst the judgement clarifies that the Equality Act allows for the exclusion of trans women (biological men) from women’s toilets, this is not a carte blanche for employers to discriminate in other ways.
We await guidance on how the court’s conclusion can be practically and sensitively implemented and employers should continue to ensure that they promote inclusive workplaces that champion the rights both of transgender employees and biological women.
The judgement is clear in upholding the rights of transgender employees not to suffer discrimination on the basis of either gender reassignment or their perceived sex and that they have the right to equal treatment under the law where it is proportionate and doesn’t undermine the equally important rights of women to safety and dignity.
If you wish to discuss anything mentioned in this article or any employment matters you may have please contact Matthew Ottley or a member of our employment team.