In the light of the Supreme Court's decision earlier this month on the definitions of 'woman', 'man' and 'sex' in the Equality Act 2010 (EA 2010), employers may need to review current policies and procedures as regards all their staff, including trans employees. This is to ensure that individuals are protected and that organisations are not at risk from claims for unlawful discrimination.
In For Women Scotland v The Scottish Ministers, the Supreme Court considered the EA 2010 which seeks to give statutory protection to people at risk of suffering from unlawful discrimination. It addressed the meaning of the words Parliament used in the 2010 Act in legislating to protect women and members of the trans community against discrimination.
In this case, the Supreme Court decided that in the EA 2010, 'sex' means biological sex so that a 'woman' is a biological woman or girl (a person born female) and a 'man' is a biological man or boy (a person born male).
This means that if somebody identifies as trans, they do not change sex for the purposes of the EA 2010, even if they have a Gender Recognition Certificate (GRC). A trans woman is a biological man and a trans man is a biological woman.
As the Supreme Court made clear, a trans person still continues to be protected under the protected characteristic of gender reassignment or in relation to their biological sex (or perceived biological sex).
Equality and Human Rights Commission interim guidance
The Equality and Human Rights Commission (EHRC), recognising that this ruling has practical implications for organisations, has published interim guidance outlined below to provide clarity, pending an update to their Code of Practice in the coming months.
The interim guidance sets out the ways in which workplaces, and services open to the public, such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services should make provision for single-sex toilets, as well as sufficient single-sex changing and washing facilities. The requirements vary depending on the function of the organisation.
It is compulsory in workplaces to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.
While this is not required for services open to the public, they can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the EA 2010 and it could be indirect sex discrimination against women if the only provision is mixed-sex.
For workplace and services that are open to the public such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services the lawful provision of facilities is more complex but trans people must not be put in a position where there are no facilities for them to use
The guidance also highlights the implications of the decision for sporting bodies, schools and associations with more than 25 members.
Considerations
Employers should consider whether their current policies and procedures are legally compliant and align with the Supreme Court's decision on the meaning of man, women and sex in the EA 2010. As outlined in the EHRC guidance, those with single-sex policies in relation to toilet facilities and changing rooms will need to review current practices. Other policies which may need review are those such as those relating to pregnancy, maternity and family leave, gender identity, and menopause.
Such considerations are key to ensure that all individuals, including trans men and women, continue to be treated with dignity, respect and are protected from unlawful discrimination and harassment under the EA 2010. Taking such steps are also key to minimise the risk to organisations of any successful claims.
If you would like advice in relation to these recent developments, please contact p.callaghan@taylorwessing.com or your usual contact in the Employment Group.
