Supreme Court confirms ‘sex’ means biological sex: What UK employers need to know
The UK Supreme Court has recently confirmed that the term “sex” in the Equality Act 2010 refers specifically to biological sex.
This decision, made in the case of For Women Scotland Ltd v Scottish Ministers, has created some confusion for employers, particularly in relation to workplace facilities and the rights of transgender employees.
Although the ruling has clarified a legal definition, it’s important to emphasise that it does not change the underlying protections already in place for transgender people. Employers should continue to foster inclusive workplaces while ensuring they are meeting their legal obligations under equality law.
In this case, the Supreme Court confirmed that the protected characteristic of "sex" under the Equality Act applies to biological sex only. This means, for example, that a trans woman with a Gender Recognition Certificate (GRC) is not considered female in legal contexts that relate specifically to biological sex, such as single-sex services or spaces defined under the Act. In other words, it can now be legal for trans women (referred to in the ruling as being biologically male) to be excluded from women-only spaces.
However, transgender individuals are still protected from discrimination under the separate protected characteristic of gender reassignment, which applies to anyone undergoing, intending to undergo, or having undergone a process of gender transition.
One area in which employers are seeking clarity is the provision of single-sex toilets and changing rooms. According to interim guidance from the Equality and Human Rights Commission (EHRC), employers must ensure there are adequate single-sex facilities where needed. In limited and clearly justified cases, it may be lawful to restrict access to such spaces based on biological sex, such as in environments where privacy, dignity or safety are significant concerns.
That said, any restriction must be lawful, necessary and proportionate. For example, restrictions could be more justifiable in high-sensitivity environments like medical or custodial settings, but far less so in general office spaces.
The ruling only clarified the legal case for trans women, but the implication is a confusing one. In practice, under the new judgement, trans men (biological females who now identify as men) could be excluded from both male and female spaces. When asked to offer further clarity on this, the court ruled that trans men could be denied access to female-only spaces “where reasonable objection is taken to their presence, for example because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken".
However, requiring a trans employee to use the toilet of their former gender or to rely solely on a disabled facility could lead to claims of indirect discrimination. Instead, employers should consider whether gender-neutral options are available and be guided by the way the individual presents themselves in the workplace. Gender-neutral (or mixed sex) bathrooms, could be an efficient way of significantly reducing any legal issues that the ruling, and any subsequent fallout surrounding it, could cause.
While many may find the judgment to be another legal hurdle to overcome, employers are advised to take a proactive and inclusive approach. This can be considered an opportunity to directly engage with your workforce through consultation to better understand how your workforce would like to see these issues handled. This approach can help to identify practical solutions, foster a respectful workplace culture, and avoid policy decisions that inadvertently isolate or upset certain groups.
In addition to reviewing facilities, employers should:
Update relevant policies, such as diversity and inclusion or workplace dignity policies.
Refresh training for HR and management staff to ensure sensitivity and legal awareness.
Offer appropriate support to trans employees, particularly in light of the increased public discussion around this issue.
While this ruling is legally significant, it is unlikely to lead to major changes in how most employers manage their teams day to day. The key takeaway is that employers must continue to strike a fair balance: respecting biological sex-based rights where relevant, while ensuring that trans employees remain fully protected, supported and treated with dignity.
If you are reviewing your policies or need advice on creating an inclusive and legally compliant workplace in light of this recent ruling, our specialist employment team is on hand to help.
Contact Ruth to discuss this further.
