The Supreme Court’s ruling yesterday that the legal definition for a woman in the Equality Act 2010, is based on biological gender, has attracted the attention of HR professionals and employers. Personnel Today presents their opinions and those of the campaigners.
The judge Lord Hodge stated that “the unanimous decision of this court was that the terms ‘woman’ and’sex, in the Equality Act 2010, refer to a woman biologically and biological sex.”
According to the ruling, transgender women who have a certificate of gender recognition can be excluded from spaces for single-sex people if it is “proportionate”.
He said that the decision was not a win for one group or another.
But this view is not shared by all campaigners. Scottish Trans, a campaign group, urged people to “not panic”, while Simon Blake, chief executive officer of LGBTQ+ charity Stonewall said that the ruling is “incredibly worrying for trans community”.
Sex Matters, a campaign group that argued in the case, said that the court’s decision was correct. Maya Forstater said that the court’s ruling was correct. “The protected characteristic of sexuality – men and women – is reality, not paperwork.”
She said that the result was “the only sensible one and one that protects the human rights of everyone.” The government, officials, and regulators must now act to ensure that everyone understands this law. “Women have been lied about and let down too long.”
The Supreme Court had to decide whether someone with a certificate of gender recognition who recognized their gender as female would be considered a woman in the Equality Act. This means they will gain protection rights, such as the right for equal pay and protection against discrimination.
This decision follows a long battle that took place between the Scottish Government and the campaign group For Women Scotland. The group objected against a proposed amendment of the Gender Representation on Public Boards (Scotland), which proposed expanding the scope to include all transwomen, including those without a gender-recognition certificate.
Kishwer falkner is the chairperson of the Equality and Human Rights Commission. She called the ruling a “victory for common sense but only if trans people are acknowledged.”
Falkner said on BBC Radio 4 Today that transgender people have rights. “Their rights must be respected. Then it will become a victory of common sense.”
“It is not a win if there are more unpleasant acts against transgender people. We won’t tolerate it. “We are here to defend transgender people just as much as anyone else.”
Clarity for employers: CIPD
Peter Cheese is the chief executive of Chartered Institute of Personnel and Development. He agreed that the ruling recognised the rights of people who identify as transgender. He said that the ruling will improve understanding between employers and employees.
He said that employers should ensure their policies are updated to reflect the current legal position in the UK. However, he added, there are still many legal and practical issues to be resolved to ensure inclusion, dignity and fairness, as well as to protect all employees from harassment and discrimination.
Cheese said: “We are updating our content and resources where necessary for HR professionals.”
Stonewall’s Simon Blake stated that while his organization was deeply concerned at “the widespread implications” the ruling, it was important to “remind the court clearly and strongly reaffirmed the Equality Act will protect all trans people from discrimination based on Gender Reassignment and continue to do so.”
He promised that “Stonewall” would continue to work with the government, parliamentarians and other stakeholders in order to obtain equal rights for LGBTQ+ individuals under the law.
Sandi wassmer is the CEO of non-profit organisation enei, (Employers Network for Equality and Inclusion). She joined Peter Cheese to urge “employers not forget that transgender workers remain protected against discrimination due to gender reassignment under the Equality Act. Employers should also ensure that employees feel comfortable and free from discrimination, regardless of their gender identity.
“Creating inclusive cultures, and psychologically safe workplaces for everyone, is absolutely essential. This means going beyond Equality Act in order to cover all reasons why a person might be discriminated against at work.”
“Thorny” issues ahead
Hina Belitz a partner at Excello Law and employment lawyer took a more sceptical view. She said that it would “inevitably” lead to thorny questions.
Belitz stated: “Employment Law has long recognized sex differences – in fact, this is embedded into the fabric of the law, when it comes to, for instance, discrimination based on sex. The bedrock of equal treatment law is to acknowledge a tendency toward unequal treatment, especially for women.
This will lead to some difficult issues. For example, if a woman transitions from a female to a male, and receives a certificate of gender recognition, and becomes pregnant, what will happen to her parental leave, since maternity leave and paternity are different in law?
Trans rights have not diminished
Tracey Burke is a senior HR consultant with WorkNest. She believes that the most important benefit of this ruling for employers was the clarity it provided. Previously, they had faced contradictory interpretations of law. She said that employers must be aware of the impact this ruling could have on transgender workers and take proactive measures to encourage inclusion and support.
Burke referred to high-profile legal cases that involved workplace facilities such as changing room and bathroom, including the case brought by Sandie Peggie against NHS Fife, and a team of nurses who sued their NHS Trust in Darlington. “High-profile instances involving workplace amenities, such as changing room and bathroom, highlight the complexity of implementing single-sex policy.” The employers may need to review the provisions in order to remain compliant and create environments that are safe for all employees.
Burke stressed that the ruling shouldn’t be interpreted as a diminution of trans rights. “As noted by the Court, this isn’t a victory won by one group against another. This is a clarification intended to support fairness, consistency in the law, and better implementation of policies across all workplaces.
Employers are encouraged to invest in inclusive practices and communication. They should also continue to train their staff, and take a zero tolerance approach to bullying. The ruling provides a stronger legal basis – it ensures that compassion and compliance go hand in glove.
What’s next?
Falkner, who spoke to BBC, said that the next step in litigation could be tests on the effectiveness of the gender certification or other areas. We do not believe that they are worthless. They’re important to us.
“But I believe there will be other places, I mean the Government is considering digital IDs. And if they come into play, what documentation will prove the identity of the person? It’s a place that we will have to monitor very closely as time goes on.”
Falkner said that in the future, “We will have a new code of practice which will be the law, and it will be interpreted as such by the courts.” We hope to have it by summer.
She said that this would clarify the fact that trans women cannot participate in women’s sports, or use women’s-only restrooms or changing areas. The NHS should also update its guidance regarding single-sex wards on the basis of biological sex.
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