Supreme Court Clarifies Definition of ‘Woman’ Under the Equality Act 2010: What are the implications for employers?

The Supreme Court recently delivered a significant ruling, clarifying that the terms “woman” “man” and “sex” under the Equality Act 2010 refer strictly to biological sex. MDJ’s Kim Whalen-Blake explains how, importantly, the Court held that having a Gender Recognition Certificate (GRC) does not change a person’s sex for the purposes of the Equality Act’s single-sex protections and considers the implications for employers.

Case Summary

The issue arose from the Scottish government initiative to improve female representation on public boards. The Scottish government redefined “woman” in statutory guidance that the Equality Act 2010 should be read to include trans women with a GRC. They relied on their interpretation of the Gender Recognition Act 2004, which provides that a trans person, with a GRC, is entitled to have their acquired gender recognised ‘for all purposes’. The effect of the change would mean those holding a GRC would have the right to access single-sex services based on their acquired gender. This was challenged by For Women Scotland Ltd through the courts, to eventually be determined by the Supreme Court.

The Supreme Court held that that the Equality Act’s provisions regarding sex must be interpreted based on biological sex and not acquired sex, even where a GRC has been obtained. It felt a ruling otherwise would disrupt the coherence of the legalisation, particularly in the areas of pregnancy, maternity and sex-based protections. It would also give greater right to GRC holders, which could cause a divide within the trans community and create practical issues for service providers who are prevented from lawfully asking if an individual holds a GRC.

The Supreme Court was keen to emphasise that its interpretation does not remove Equality Act protections for trans people, with or without a GRC. The trans community retains protection under the legislation from any discriminatory treatment because of gender reassignment and because of perception or association with their acquired gender.

Impact on Employer Policies and Procedures

For employers, this decision has significant implications. Firstly, this issue has been highly topical, contentious and widely debated in media outlets over several years. Some employees will undoubtedly feel emboldened in light of this ruling that their beliefs have been validated, whereas others will see the decision as a set-back for trans rights.  Competing beliefs in the workplace, and how employees express those beliefs, remain the subject of many current employment tribunal cases.

Secondly, since the decision confirms that legal protections, obligations, and exceptions based on “sex” must relate to biological sex, regardless of whether a person has obtained a GRC, employer’s management of single-sex spaces, facilities, and services must be reviewed.

Key actions for employers include:

• Policy Review: Organisations must review their policies on sex-based rights, single-sex services, and discrimination to ensure they align with the Supreme Court’s interpretation of the Equality Act legislation. Definitions of “woman” and “man” should reflect biological sex where relevant.
• Training Updates: HR teams and managers must understand the distinction between biological sex (for legal compliance) and gender identity (for fostering inclusion), ensuring sensitive and lawful handling of workplace issues.
• Facilities Management: Access to single-sex spaces, such as toilets and changing rooms, may require reassessment to reflect the legal position without unlawfully discriminating against trans individuals.

Maintaining an Inclusive Workplace

While the Supreme Court ruling undoubtedly clarifies the legal framework, it does not diminish the importance of fostering a culture where all employees feel safe and respected. Misapplication of the law or insensitive handling could risk claims of unlawful discrimination based on gender reassignment.

Employers must navigate this legal landscape carefully, ensuring that workplaces comply with the law, while also honouring commitments to inclusivity and human dignity for all staff, regardless of gender identity.

You should continue to:

• Respect Preferred Gender Identity: Use employees’ preferred names and pronouns in everyday interactions, internal records (where legally possible), and workplace communications.
• Consult Inclusively: Engage with LGBTQ+ staff groups and diversity advisors when reviewing or updating policies, ensuring a balance between legal obligations and respect for diverse identities.
• Communicate Carefully: Any changes to policies or practices must be communicated sensitively, explaining that while legal compliance is necessary, the organisation remains committed to dignity, inclusion, and equality for all.

If you have any queries or concerns about the impact this ruling has specifically on your business, do not hesitate to reach out to us.