Decision
The Supreme Court has ruled that 'woman' and 'man' in the Equality Act 2010 (EqA 2010) have a biological meaning. This means that if somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC). A GRC enables someone to change their legal sex on their passport or birth certificate but this does not alter the meaning of 'man' and 'woman' under EqA 2010. The Gender Recognition Act 2004 (GRA 2004) states that the fact someone can change sex for legal purposes is subject to 'any other enactment' and the relationship between EqA 2010 and GRA 2004 has not been resolved until now.
Much of the decision hinges on the correct approach to statutory interpretation, both in terms of giving words their ordinary meaning, and construing words in the context of the statute. Further, it is necessary to have regard and give effect to the policy considerations behind the legislation.
It was clear from EqA and its predecessor (the Sex Discrimination Act 1975) that 'man' and 'woman' had a biological meaning. Any other interpretation would make various provisions that rely on this binary distinction unworkable, such as with regard to pregnancy and maternity, positive action measures, single-sex spaces and data collection. Many of the provisions in EqA 2010 rely on a comparison between two distinct groups, each with shared characteristics, one of which is at a comparative disadvantage to the other.
Gender reassignment is a distinct, protected characteristic under the EqA 2010. Transgender people have the right not be discriminated against or harassed on grounds of gender reassignment (which is defined more widely than undergoing a medical procedure). In addition, to the extent that someone is perceived to be male or female, they may claim to have been discriminated on grounds of sex (even if it is not their biological sex).
Who is this decision relevant to?
The decision is relevant to all employers (public and private) and those institutions and service-providers which are subject to the EqA 2010. Because the EqA 2010 affects so many areas of public life, as well as the workplace, this decision will play out in many different contexts where there are overlapping considerations and regulatory frameworks. As the regulations on toilet provision in workplaces illustrate, it is the interaction between the EqA 2010 and the relevant regulatory framework which could give rise to a claim. This will always be context-specific. The key will be for organisations to recognize when there could be a discrimination issue at play, involving the biological definition of sex being applied within the relevant framework within which they operate, and to identify where the risks lie.
The decision will mostly affect the following areas:
- Toilet use in workplaces and buildings open to the public (for which, see the section below on the EHRC Interim Guidance).
- Single-sex provision, particularly services provided to women.
- Genuine occupational requirements where having the protected characteristic of sex is relevant to the service or job.
- Positive action measures – while there is no legal obligation for private employers to undertake positive action measures, where they are undertaken, they should be undertaken lawfully, which means targeting the measure at the under-represented group correctly and in a proportionate way.
- Equal Opportunities Policy and policies in which sex and gender are referenced – these should be reviewed in light of the decision to make sure they comply with the law.
- Potential for workplace disputes.
- Data collection.
What about people who do not agree with the decision?
It is clear that the decision has generated much debate and divided feelings but it should nevertheless be respected. As with any issue in the workplace where beliefs may be polarised or at least not perfectly aligned (for example, on grounds of religious or political belief), an employer has a duty to act impartially when investigating grievances and to not breach trust and confidence when doing so. Within reason, people also have a right to freedom of expression in the workplace and should neither be vilified nor silenced in relation to their views. The existing case law in relation to clash of belief cases (typically as between gender critical and religious beliefs) will be pertinent here.
Equality and Human Rights Commission (EHRC) interim guidance
The EHRC, recognising that this ruling has immediate practical implications for organisations, has published interim guidance outlined below to provide clarity, pending an update to their Code of Practice. The Code of Practice is expected to be available in late June.
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.
In workplaces, employers have an obligation to provide single-sex toilets (note that regulation 20 of the Workplace (Health, Safety and Welfare) Regulations 1992 provides that toilets for men and women should be in separate rooms "except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside".) It is also compulsory to provide sufficient single-sex changing and washing facilities where these facilities are needed.
For workplaces 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.
Where facilities are available to both men and women, trans people must not be put in a position where there are no facilities for them to use. Where possible, mixed-sex toilet, washing or changing facilities in addition to single-sex facilities should be provided.
The guidance also highlights the implications of the decision for sporting bodies, schools and associations with more than 25 members.
We will keep subscribers updated about significant developments in this area, particularly when there is a new Code of Practice. In the meantime, please contact Paul Callaghan, Helen Farr or Sean Nesbitt, if you have any immediate queries on this.
