Supreme Court Ruling on the Definition of Women Under the Equality Act 2010: Key Insights and Implications

The Supreme Court has recently clarified that under the Equality Act 2010 ('EqA 2010') the protected characteristics of sex and gender reassignment are legally distinct and should be interpreted independently of one another, each offering separate and specific forms of protection. The Supreme Court has ruled that the definition of a woman in the Equality Act is based on biological sex. The ruling has wide implications for discrimination law, for example, in relation to the regulation of single sex spaces.

Background of the Case

For Women Scotland ('FWS'), a voluntary organisation that campaigns to 'strengthen woman's rights' in Scotland, contended that the definition of 'woman' under the EqA 2010 is based on biological sex. As such, the organisation argued that transgender women holding a Gender Recognition Certificate ('GRC') should not fall within the legal definition of a woman under the EqA 2010 and consequently should not be included in the definition used in the Gender Representation on Public Boards (Scotland) Act 2018, which was introduced to create gender representation targets to increase the proportion of women on public boards in Scotland. In contrast, the Scottish Ministers submitted that the definition of a 'woman' under the EqA 2010 refers to 'certified sex', meaning that transgender women with a GRC are and should be included within that definition. The Court of Session in Scotland had previously found in favour of the Scottish Ministers.

Supreme Court Decision Summary

The Supreme Court ultimately upheld the FWS appeal, holding that the terms 'man,' 'woman' and 'sex' in the Equality Act refer to biological sex and does not extend to certified sex. The Court carried out an analysis of legislative history and statutory interpretation of the words 'woman', 'man' and 'sex' and concluded that any other interpretation would render certain provisions within the EqA 2010 incoherent.

The Supreme Court also indicated that provisions in the Equality Act for 'single sex' spaces, which allow exclusion of people of a particular sex in circumstances where it is proportionate, are therefore also based on biological sex. This indicates, therefore, that transgender people may be excluded from single sex spaces based on their sex assigned at birth. This finding will require careful consideration of how to organise workplace facilities.

The Supreme Court affirmed that the EqA 2010 still protects transgender individuals, on the grounds of gender reassignment and in some circumstances, perceived sex. These protections encompass direct discrimination, indirect discrimination and harassment. It is noteworthy that transgender individuals do not need a gender recognition certificate to qualify for this protection. Discrimination claims brought by trans people could be on the ground of gender reassignment, or sex discrimination if the discrimination towards them is based on a perception of their sex rather than gender reassignment.

Implications of the Ruling

The recent Supreme Court judgement highlights the importance of and need for employers to strike a balance between complying with the law and supporting the well-being and dignity of their employees, in order to avoid potential discrimination. Employer obligations need to be considered, for example, in the context of showers/toilets and changing facilities, sport, and how and when service providers can and must provide single sex sports provision.

We therefore recommend employers to take the following actions:

• Ensure policy and procedures are up to date
  Employers should ensure that their policies and procedures are up to date to reflect current legal guidance while also allowing all employees to feel safe at work. This may involve looking at equality, diversity and inclusion policies that are already in place and consider whether there any steps required to achieve the aforementioned balance. This may also involve consultation with employees who may be affected by this ruling.
• Provide regular training to staff
  Training could assist in keeping all employees up to date with the current legal position while also reminding them to remain ultimately respectful of colleagues. These kinds of opportunities could involve covering topics such as gender identity and practical case studies on respectful inclusion within the workplace. 
• Fostering a positive workplace culture
  It is important to note that employers who foster a positive workplace environment and promote inclusivity are ultimately better positioned to prevent discrimination claims from arising. Creating a respectful and supportive culture involves being proactive in keeping up to date with changes in law and ensuring employees feel respected, valued, and heard at work. 

The Equality and Human Rights Commission's Interim Guidance

The Equality and Human Rights Commission has issued interim guidance in light of the judgment, which can be found here. We understand that this guidance is to be further updated following consultation.