Supreme Court ruling, EHRC’s latest: How should HR respond to it?


The Supreme Court has ruled earlier this month that the legal definition for a woman is based on the biological sex.

Both sides of the debate on transgender issues were equally excited and disturbed by the judgment in For Women Scotland v Scottish Ministry. There are still many questions about how managers and HR teams will deal with these practical issues.

The Equality and Human Rights Commission published this weekend an “interim Update” about how employers, service providers and associations and bodies should understand the ruling.

Next month, the EHRC will launch a consultation to solicit views from all stakeholders. The EHRC will then aim to submit an updated code to the government before the end of the June. The code of practice will need to be approved and signed off by the ministers.

There are still questions about how to interpret the Supreme Court’s decision on a practical level, including:

What should we be doing until the EHRC Code of Practice is approved?

Both the CIPD (formerly the Acas) and the conciliation body, the CIPD, urged employers at the time of the original decision to consult employment lawyers in order to ensure compliance with individual practical issues such as occupational requirements or single-sex provision.

They advised employers to explain to employees the impact of this ruling and their commitment to inclusion.

The EHRC is the UK’s body responsible for enforcing equality laws. It will be this full, approved, statutory guidance that informs any violations of legislation.

Heather Mitchell, a partner at Browne Jacobson in the employment department, says that the Equality Act 2010 still remains essential and the scope for advancing DEI initiatives are still wide.

She says that the Supreme Court was careful to note that transgender individuals were still protected against discrimination. Employers and service providers must continue to balance their needs with those of other individuals, in compliance with equal opportunity legislation.

The EHRC’s guidance for this summer could be a good time to wait and ensure that policy changes are informed by the latest recommendations.

“Our view is that there are minimal risks of successful tribunal cases associated with the continuation of inclusive practices and updating DEI in the interim. However, organisations may feel pressured to review and confirm positions.

“Employers are still able to adapt policies as necessary and pursue DEI objectives that go beyond the legal requirements. They should focus on creating an environment where employees feel valued and supported.

“Again, if the employer is seeking to make a reactionary change in the interim, then we strongly recommend taking legal advice in order to avoid a ‘overcorrection’ as a response to this judgement. We believe that the risks of a ‘overcorrection,’ as opposed to a ‘undercorrection,’ are higher.

Can a transgender person still use the facilities they prefer?

The debates around sex based policies in the workplace have focused on the availability of toilets and whether trans women and men can use the female facilities and the male facilities.

The EHRC’s latest update states that it is mandatory to provide enough single-sex restrooms in workplaces. It also says there must be sufficient facilities for single-sex washing and changing.

The Equality Act 2010 does not apply to someone who identifies themselves as trans. This is true even if the person has a certificate of gender recognition.

The EHRC’s update clarifies that trans women (biological males) are not allowed to use facilities for women, and trans men, (biological females) should never be allowed to use facilities for men, because this would make them no longer be single-sex areas.

The law states that trans women (biologically male) are not allowed to use male facilities, and trans men (biologically women) are not allowed to use women’s.

It advises that “where facilities are available for both men and woman, trans people shouldn’t be placed in a situation where they have no facilities to use.” The report also suggests that organisations should provide facilities for mixed-sex toilets, changing rooms and washing facilities.

The article adds that “where toilets, changing or washing facilities are located in rooms with lockable doors (not cubicles), which are designed for one person to use at a given time, either men or women can use them.”

Akua Reindorf KC is an EHRC Commissioner who argues that neither the judgment nor the update forces trans people to use opposite sex services if organizations operate in a manner that considers the dignity and safety for everyone.

She claims that there could be a “case by case” basis to exclude someone who is biologically a woman but passes as a male, from women’s facilities.

Some experts, however, see the issue as being more clear. Philip Pepper, a partner in Shakespeare Martineau’s employment department, said: “The Supreme Court ruling means that women-only areas cannot be used by men who identify as women. This includes toilets, changing rooms, hospital wards, and similar facilities. Before this decision, laws governing the use of facilities were complex and in some cases unclear,” he said.

“Complex and nuanced”

Mitchell points out, that although this may seem like a simple clarification, there are many details in the fine print. The guidance continues to state that trans people shouldn’t be left out of facilities available to men and women. Where possible, there should also be mixed-sex restrooms, changing or washing facilities, in addition to adequate single-sex facilities. She says that employers have to decide what is “possible”.

“Despite the apparent clarity of the ECHR guidelines, the employer must be aware of any risk of a claim for discrimination (if the group shares a protected trait). It is a nuanced and complex balancing act.

It is important to keep in mind that trans people are protected by the Equality Act, under the characteristic of gender reassignment. They must also be able to access suitable facilities. If the lack of facilities is not justified, it could lead to a discrimination case.

Employers may consider gender-neutral facilities (or unisex facilities) in addition to gender specific facilities. Or they may wish to reassure their staff that there is no need to alter current practices due to the ruling.

It is the employer’s responsibility to decide the best way to give everyone access to the appropriate facilities while treating everyone with respect and dignity. Employers should balance the needs of all parties involved.

She continues: “The protection from discrimination also includes protection from harassment. Employers must ensure that they respond to the Supreme Court judgement and ECHR guidance in a way that is appropriate to their situation. “A thoughtful approach will minimize the risk that legitimate claims of harassment of trans employees in relation to any policy have been made.”

Sue Tumelty of the HR Dept. consultancy reminds us that regulations on workplace health and security require employers to offer safe, secure facilities for female employees.

“However workplaces can have unisex restrooms provided that they are located in a separate, enclosed room with a lockable, door and wash basin. In other words, no cubicles with gaps over or under the door. And there must be hygiene facilities at each toilet.

“For larger businesses, we could see an increase in the number of employers providing female toilets, as well as unisex and male toilets.”

What are the sex-based policy?

Mitchell warns employers against making any sudden changes, even though the CIPD or Acas recommend that they review their policies in order to reflect this decision. While employers are free to change the word’sex,’ to a more accurate term (for clarity), we encourage them to consider the impact on the transgender community. We believe that most policies will remain effective and caution against any reaction based on the Supreme Court’s decision.

Mitchell suggests that employers should consider their objective reasons for making the change and then consider how to ensure that trans people are treated equally.

It is important to communicate the changes in a sensitive and clear manner. This will help employees understand and accept them. A progressive employer might want to reassure their staff in light of all the attention that the FWS decision received by issuing a press release affirming their commitment to inclusion and respect for personal identity.

Equal pay, gender pay gap reporting and other sex-based rights could be affected. In 2017, when gender pay gap reporting regulations were introduced, employers were required to report differences in median hourly wages between “men and “women”, but the terms used were not defined. Employers could then decide how they wanted to classify transgender and non-binary employees.

Shakespeare Martineau’s Pepper says that the Supreme Court ruling could limit the scope of reporting gender self-identification. This may mean that employers, while it’s still possible to collect information on perceived sexuality, will need to produce reports on biological sex to meet legal requirements. “This may be difficult, and data will need to be handled carefully,” he says.

What impact will the decision have on legal claims?

In July, the tribunal proceeding that Sandie Peggie brought against NHS Fife after being suspended because she complained about sharing a changing area with Dr Beth Upton a transwoman, will resume.

Kishwer Falkner , chair of the EHRC, wrote to NHS Fife in a letter last month to remind them that men and women should have separate changing facilities. A Scottish MSP, in light of the Supreme Court’s ruling, has now called on the trust to accept defeat at the tribunal. Murdo Fraser, Conservative MSP in Scotland, said that the Supreme Court ruling meant the trust board “had no leg to stand on”.

Shirley-Anne Somerville, the Scottish Social Justice Secretary, said that it was not appropriate to interfere and that the matter was between NHS Fife and its employees. She also stated that the ongoing legal proceedings were a “matter between the employer and the employee”.

A group of Darlington based nurses has filed a lawsuit against their NHS Trust regarding the use of single-sex change rooms.

The tribunal was delayed until October and the Trust said that the decision would be “carefully taken into consideration” when reviewing its policies. Andrea Williams, CEO of the Christian Legal Centre which represents the nurses, stated that the NHS must now recognize sex in the areas where it is most important: privacy, dignity and safety.

What about gender-recognition certificates?

According to the latest EHRC Update, even if someone has a Gender Recognition Certificate (GRC), they don’t change their sex in the Equality Act 2010.

Simon Blake, CEO of Stonewall , a LGBTQ+ organization, responded to the Supreme Court’s ruling last week by noting there are approximately 15,500 people in the UK who have a GRC and “tens or thousands” more without.

“Trans people are family, friends, neighbors, and co-workers; we share our workplaces with them, as well as our communities, pubs, cafés, and places of worship. He said that they are concerned and scared by the unknown legal consequences of the ruling.

Tumelty, from the HR Dept., would like employers to provide “well-thought out guidance” on how to support those with GRCs. “To ensure that these people do not feel betrayed or excluded because of this decision”.

She also adds that other policy areas, like maternity leave, may need more clarity.

“For instance, if a trans woman who is legally recognised as female becomes pregnant, she would not receive maternity leave if the employer sees her as a man. However, if the employer still views her as a female, then they will receive maternity leave.

“Because of the toxic debate surrounding this ruling but also rights in general, many small employers feel frightened. This can do more harm than good for tolerance.

Employers may be afraid of hiring someone trans, and they might accidentally use the wrong pronouns and cause distress. They would then feel scared about hiring them. This is exactly what we don’t want.

HR professionals will play an important role in helping businesses foster a tolerant and inclusive environment where employers are able to improve and employees feel supported.

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