In April 2025, the UK Supreme Court delivered a landmark ruling in the case of For Women Scotland Ltd v The Scottish Ministers, which has significant implications for the interpretation of "sex" under the Equality Act 2010. The Court clarified that the terms "woman" and "sex" refer to "biological woman" and "biological sex," not gender or sex acquired through a Gender Recognition Certificate (GRC). This decision has prompted the Equality and Human Rights Commission (EHRC) to issue interim guidance to help employers and service providers navigate the practical implications of this ruling.
Implications for employers and service providers
Single-sex facilities
The Supreme Court's decision underscores the legal requirement for workplaces to provide sufficient single-sex toilets, changing rooms, and washing facilities where needed. This means that trans women (biological men) should not be permitted to use women's facilities, and trans men (biological women) should not use men's facilities, as this would compromise the single-sex nature of these facilities. However, where facilities are available to both men and women, trans individuals should not be left without any facilities to use. Employers are encouraged to provide mixed-sex facilities in addition to single-sex ones, where possible.
Balancing competing rights
The EHRC's interim update highlights the need for employers to carefully consider the implications of the Supreme Court's ruling, particularly in light of the protected characteristic of "gender reassignment" under the Equality Act. Transgender individuals can still pursue claims of discrimination, harassment, and victimisation based on associative and/or perceived sex or gender reassignment. Employers must ensure that their facilities and policies are legally compliant and consider the rights and needs of all employees.
Legal compliance and policy review
Employers are advised to review their operational functions, policies, and procedures to ensure they align with the Supreme Court's interpretation of "sex" under the Equality Act. This includes updating definitions, training staff, and ensuring that all policies are legally compliant. The EHRC is working on updating its Code of Practice to reflect the implications of the Supreme Court's judgment, with the aim of providing further guidance to employers and service providers.
Practical steps for employers
Facility audits and redesignation
Employers should conduct audits of their current facilities to identify existing mixed-sex facilities and assess whether additional facilities could be redesignated as mixed-sex spaces. This may involve working with building consultants and landlords to find the right balance of facilities for their premises and workforce. In the short term, redesignating existing spaces as unisex or inclusive may be the most practical way to create mixed-sex spaces, although this may not meet the Health and Safety Executive's conditions for mixed-sex toilets, which require individual lockable rooms.
Communication and consultation
Effective communication with employees is crucial in navigating the changes resulting from the Supreme Court's decision. Employers should provide reassurance to employees who may be concerned about gender reassignment harassment and address any concerns about safe spaces. It is important to remind staff of anti-harassment policies and the protections that apply on the grounds of gender reassignment, sex, and religion or belief. Employers may also consider conducting staff surveys or setting up communication channels with diversity groups to seek their views on the implications of the ruling.
Training and support
Managers and HR teams should receive training to ensure they are fully aware of the Supreme Court's ruling and its implications. This training should equip them with the tools to answer difficult questions and support employees effectively. Employers should also consider signposting to employee support contacts or an employee assistance programme/helpline to provide additional support to staff.
Ongoing developments and future guidance
The EHRC is in the process of updating its statutory and non-statutory guidance to incorporate the implications of the Supreme Court's judgment. This includes a two-week public consultation in mid-May 2025 to understand how the practical implications of the judgment may be best reflected in the updated guidance. The updated Code of Practice is expected to be submitted to the UK Government by the end of June 2025 for ministerial approval.
Conclusion
The Supreme Court's ruling on the definition of "sex" under the Equality Act 2010 has significant implications for employers and service providers. It is essential for organisations to review their policies and practices to ensure compliance with the updated legal framework. By taking proactive steps to audit facilities, communicate effectively with employees, and provide training and support, employers can navigate the challenges posed by the ruling and foster an inclusive and respectful workplace environment. The EHRC's ongoing work to update its guidance will provide further clarity and support to organisations as they implement necessary changes in response to the Supreme Court's decision.
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