13 Jun Supreme Court Clarifies Equality Act Definitions of “Sex”, “Man” and “Woman”
The Equality Act 2010 definitions of: “woman” “man” and “sex” all refer to biological sex under the Supreme Court’s recent ruling – what does that mean for employers?
What are the basics of this issue?
A trans person is able (at 18) to apply for a gender recognition certificate (GRC) providing them with legal recognition of their ‘acquired gender.’
Under the Equality Act 2010 (EA), gender reassignment is a separate protected characteristic, as is sex, which is defined separately as binary under the EA being male or female i.e. man or woman.
Further, the EA defines a woman as ‘a female of any age’.
The Equality and Human Rights Commission (EHRC) recommended that the government clarify sex under the EA as being biological sex in order to help clarify the following protections and issues such as:
- As the law stood before this case:
- a trans woman with a GRC was able to assert access to “women only” services, the most topical being women’s toilets and changing facilities and hospital wards etc.; or
- those putting on women’s sports events and want to base participation only on biological sex would need to legally justify doing so and could be subject to challenge
- Other examples that the EHRC identified as tricky areas include:
- Where trans men who are pregnant but whose sex is male aren’t protected by the law covering pregnant women; or
- In positive action cases i.e. to promote more woman into senior roles, currently, trans women with a GRC will benefit from pooling ‘women only’ into promotion shortlists, whereas trans men with a GRC do not.
What did the Supreme Court Decide?
In simple terms, the Court decided that:
- Parliament/the law intended the words “man” and “woman” and “sex” in the EA to refer to biological sex.
- Thus, trans women holding a GRC were therefore excluded from how “woman” is defined in law.
It is important to note that trans people DO (and always did) continue to have protection from (broadly speaking here) discrimination: –
- under the protected characteristic of “gender reassignment” under the EA, that is unchanged and applies from when they undergo a gender re-assignment process; and
- from not being subject to a detriment for taking time off due to the transition process; and
- from discrimination or harassment because of their perceived sex too, as opposed to them being trans; and
- there are other protections already in place too, covering the processing of their sensitive private data and protection to private and family life/sexual and gender autonomy, under the European Convention on Human Rights Act.
Implications for employers?
The obvious issues are: –
- A policy review is needed where issues of gender/single sex status are present (see some examples above, pregnancy and maternity leave or single sex changing facilities and toilets, selection processes etc.).
- The obvious issue of single sex toilets and changing facilities are arguably simpler now BUT – whilst a GRC does not now mean entry is required for a trans woman, employers must still treat all staff with dignity and care and thus will need to provide private comparable facilities, the obvious solution being unisex facilities for all to use.
- Whilst again, all staff must be treated with dignity and respect, in areas where employers have occupational requirements to be a particular sex; or where employers take action to promote women over men, then in each instance trans people with a GRC can be excluded.
- Where service providers require single sex access / representation, then they can more easily do so and can, again, exclude trans people with a GRC.
The ruling has very significant implications for employers and those in the trans community who, whilst they still have protections in law, may well seek to challenge this ruling and seek legislative revision of the implications of the Judgment.