The UK Supreme Court ruled in a recent ruling that the term “woman” used in the Equality Act 2010, refers to the biological sex and not transgender women with a Gender Recognition Certificate.
The judgment delivered on Wednesday, 16 April, overturns previous guidance from the Scottish Government which had widened the definition of GRCs to include individuals who have GRCs as protected characteristics under the characteristic of sex.
For Women Scotland brought the case, challenging the Scottish Ministers for confusing the protected characteristics “sex” with “gender reassignment”. Lord Hodge confirmed in his unanimous verdict that “the terms woman and sexuality used in the Equality Act of 2010 refer to biological women and biological sex.”
He warned against viewing the decision as “a victory of one group over another”. The decision confirmed that transgender people are protected by the characteristic of gender reassignment.
CIPD Response
This decision will have significant implications for employers and HR professionals, as well as those who are responsible for ensuring that there is equality and inclusion at work. The ruling outlines legal protections for biological sex, gender reassignment and workplace facilities. It also requires a closer look at policies related to data collection, staff training and workplace facilities.
Peter Cheese, Chief Executive of the CIPD (the professional body for HR & people development), commented: “This will further understand individuals and organisations on a topic that has been difficult for employers to interpret. It will also help them find the balance and recognise the rights and belief systems which need to be maintained by all.
Employers will need to update their policies to reflect the current legal position in the UK. There will be legal and practical issues that employers must work through in order to ensure inclusion, dignity and fairness at the workplace and protect all colleagues from harassment and discrimination.
The CIPD has updated its resources and content for HR professionals in response to the ruling.
Compliance with HR policies and regulations
Tracey Burke is a Senior HR Consultant with WorkNest. She says that the decision provides clarity to employers who previously had to deal with contradictory interpretations of equality laws. The decision, she said, “provides a firmer legal foundation” – one that ensures that compliance and compassion are always in sync. She also warned that employers must continue to be sensitive to transgender employees’ needs and foster an inclusive environment.
Phillip Pepper, employment partner with Shakespeare Martineau, described the Supreme Court decision as “clear” for employers. He did, however, note that there could be some short-term divisions in certain workplaces. He said that the Equality Act needs to be updated urgently in order to protect transgender individuals from discrimination, and not put them at a disadvantage because of the clarified legal term.
He added that “some workplaces are divided on this issue. Therefore, communication, training, and zero tolerance for bullying will be crucial to ensure transgender employees don’t feel uncomfortable at the office.”
Polly O’Malley of Browne Jacobson warned against making immediate changes in workplace policies without thorough review. She encouraged employers to review their current policies in light of the Court’s confirmation that Transgender individuals are protected by the characteristic of gender change.
Demands for legislative clarity, and current legal developments
Jonathan Mansfield is an Employment Law Partner with Spencer West LLP. He noted that the Supreme Court’s ruling could impact areas like equal pay which is linked to biological sex. He noted that trans women might not have the same legal rights as men, such as when bringing a claim for equal pay. He acknowledged that trans people are not covered by the current gender reassignment laws, particularly those who do not meet medical or legal requirements.
Mansfield also referred to the 2023 Equality and Human Rights Commission’s recommendation, which supported a biological definition for sex in order to clarify legal issues and for data collection purposes.
He added that “clearly there is a need for clarification of the law in this area, given the fact that the EHRC has noted the significant evolution of society with regards to protected characteristics of gender and gender reassignment issues since the Equality Act 2010 came into effect.”
Hina Belitz of Excello Law pointed out practical implications of the ruling, including how parental leave could be handled when a transman who has a GRC gets pregnant. Belitz pointed out that certain rights, such as those relating to sexual harassment, will remain unchanged since they are applicable regardless of gender.
Reviewing workplace policies and training
Chelsea Feeney is an Employment Associate at Stevens & Bolton. She stated that employers might need to revise their HR and diversity policies in order to be aligned with the Court’s clarification on “woman” being biological. She suggested that services and spaces for single-sex may need to be revised to reflect the new definition. However, exceptions could still allow for inclusion.
Feeney also emphasized that the ruling did not remove the existing protections of transgender individuals, who are still covered by the characteristic gender reassignment. Employers are advised to have robust anti-discrimination policy and take into account perceived gender when handling complaints or claims.
She added that transgender people can still claim sexism because they are perceived as their acquired gender. HR professionals and employers should be aware of the legal requirements.
