ON SEX AND GENDER: NAVIGATING THE EFFECTS OF THE SUPREME COURT RULING ON SEX FOR EMPLOYERS AND STAFF
The long and short of it
The Supreme Court has ruled the definition of ‘sex’ within the Equality Act 2010 (EA 2010) is to be interpreted as an individual’s biological gender rather than a trans person’s gender, certified through a gender recognition certificate (GRC).
For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [2025] UKSC 16 – what is it about?
This case revolved around the EA 2010 and its interpretation of sex. Although the sex, ‘female/woman’, was relevant to this case, the ruling applies to both genders.
As a summary of the facts, this case arose following the passing of the Gender Representation Act 2018 along with associated statutory guidance. The legislation created gender representation targets to increase the proportion of women on public boards in Scotland. The definition of a woman within this act along with its guidance included both trans and biological women.
In 2020, For Women Scotland, a feminist voluntary organisation campaigning for rights in Scotland challenged the legislation, which resulted in new guidance being issued by the Scottish Parliament (which concedes to the UK Parliament in terms of legislative powers). The new guidance stated the definition of a ‘woman’ is the same of that in the EA 2010, which defines the same as ‘a female of any age’.
Inevitably, the question arose as to whether the definition in the EA 2010 included trans women or if it strictly related to biological women.
The Scottish Ministers’ position was that the EA 2010 referred to both biological and acquired sex (via a GRC). In contrast, For Women Scotland’s position was that the definition referred to one’s biological gender, resulting in the matter being passed to the Supreme Court.
What is the Equality Act 2010 and how is it relevant to the ruling?
The EA 2010 strictly prohibits discrimination on the grounds of sex (and other ‘protected characteristics’) affording protection to both women and men in the workplace among other environments. In the context of a workplace scenario, if a man/woman were to be subjected to treatment less favourable to that of the opposite sex (a man being offered a promotion ahead of a woman by virtue of being a man, a woman being refused a job because she may have children in the future, etc.), then such treatment could amount to unlawful discrimination and give rise to a claim under the EA 2010.
In addition to specific genders being protected under the EA 2010, gender reassignment is also a protected characteristic, meaning discrimination on the grounds of gender reassignment is prohibited. For an individual to be protected from gender reassignment discrimination, they do not need to have undergone any medical treatment or surgery to change from their biological gender to their preferred gender, nor is a GRC required. If an individual is simply contemplating whether to transition to a different sex, they would be protected from discrimination.
Although a GRC is not strictly required to be protected from gender reassignment discrimination, one may obtain the same, which changes their gender for ‘all purposes’ (subject to certain limitations) as quoted within the Gender Recognition Act 2004, as it can serve as crucial documentary evidence should the need arise.
Prior to the ruling in For Women Scotland Ltd v The Scottish Ministers, it could have been argued that a trans person possessing a GRC could not only be protected from gender reassignment discrimination, but also discrimination on the grounds of their acquired sex (by way of their GRC).
It is important to note that the Supreme Court was not concerned with the philosophical or political debate over whether gender is biologically mutable, but rather with whether an acquired gender certified by a GRC was compatible with the terminology contained within the EA 2010. Could a trans man be regarded as a man under the EA 2010 (and vice versa)? Would this render the EA 2010 unworkable going forward? These were the key issues in play.
Following the judgment in this case, it has now become clear that for the purposes of the EA 2010, a ‘man’ is a biological man and a ‘woman’ is a biological woman.
What are the legal implications for trans staff?
Trans staff can be excluded from single-sex facilities. Public services, however, will have to show that excluding trans people is a limited and proportionate means to achieving a legitimate aim – and blanket bans are generally discouraged.
Under the EA 2010, trans staff were already protected from unlawful discrimination irrespective of their sex. To reiterate, any staff contemplating gender reassignment are protected. Additionally, all other ‘protected characteristics’ can still apply to trans staff – even sex in certain circumstances despite the ruling.
For example, should trans staff be refused a job or a promotion because they appear to be a female, they can still bring a claim for sex discrimination. In addition to ordinary discrimination, discrimination can also occur by perception and association.
Equally, if trans staff are discriminated on the grounds of their biological sex, then protection from sex discrimination would continue to apply. For example, a trans male employee (originally born as a woman and capable of giving birth) being refused a job due to the risk of pregnancy remains discrimination on the grounds of sex.
Trans staff retain protection from discrimination on the grounds of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex.
Therefore, our view is that the ruling does not deprive trans staff of their right to bring claims under the EA 2010. That said, trans staff may have gained additional rights – one example in recent headlines being concerned with whether trans staff should be permitted to compete in sports categories of the opposite sex, though that is outside the scope of this article.
In an employment context, there should be no significant difference except for the right that could have arisen to have complete autonomy over the use of single-sex facilities (as above and expanded upon below).
What does the ruling mean for employers?
Rulings of the Supreme Court are generally of paramount importance and often extensively covered by the press – no less for this case due to its gravity and topical significance. The primary reason for this is that the decisions of the Supreme Court (and Court of Appeal – directly below the Supreme Court in hierarchy) have precedential effect in the UK – meaning all other Courts must follow and adopt the ruling in future cases.
Given the certainty Courts at all levels now have due to the ruling when concerned with sex under the EA 2010, employers should be prepared to deal with the, albeit limited, implications in their day-to-day policies and when resolving a workplace dispute. In our view, we expect the following areas to be impacted along with previously contested areas benefitting from clarity, though this is not exhaustive:
1. Gender based occupations
Trans persons (even with a GRC) applying for certain roles requiring a specific gender (e.g. females for female refuges or specific genders for public changing room attendant roles) can be rejected for those roles without being unlawfully discriminated against, though this must still be justified by the employer.
The previous rules continue to apply but with added clarity for employers going forward in respect of their right to recruit specific genders for certain roles.
2. Equal pay
Equal pay refers to the legal right for men and women to receive the same pay and contractual benefits when performing equal work. An essential requirement for an equal pay claim to succeed is for a comparison to be made with staff of the opposite sex.
In the event of an equal pay dispute (followed by a claim in the Employment Tribunal), trans male staff may be prevented from comparing oneself to biologically female staff (and likewise for trans female staff comparing oneself to biologically male staff) – as they would be considered by the Employment Tribunal to both be biologically female under the EA 2010. Of course, the inverse scenario would not be affected by the ruling, where trans male staff would still be able to compare oneself to biologically male staff.
However, with the original scenario, trans male staff prevented from making the comparison would be able to bring a direct sex discrimination claim regarding pay as an alternative due to being ostensibly perceived as a female.
3. Pregnancy and maternity protection
Since protection from pregnancy and maternity discrimination is only made available to ‘women’ under the EA 2010, and as trans male employees would be considered biologically female employees under the same, employers must make all pregnancy and maternity rights available to trans male employees (if this is not already the case) – otherwise deprived staff would be eligible to bring various claims not limited to those capable of being brought under the EA 2010.
4. Single-sex facilities at work
It has become clear that trans staff do not have a prima facie right to access single-sex facilities (restroom, changing room, etc.) not designated for their biological sex and allowing this to occur could result in consequences for employers. In addition to indirect discrimination, staff affected by other staff of the opposite biological gender using the same single sex facility could amount to sex and/or sexual harassment, where an employer could be held vicariously liable.
Although uncertainty has been reduced but not completely lifted by the ruling, there are still some questions that require clarity. Since there would be risks in allowing trans (but biologically male) female staff to use restrooms designated for biologically female staff, could male staff be comfortable with ostensibly female (but biologically male) trans staff sharing the same restroom?
While the best approach would be to have an additional gender-neutral restroom in the workplace, not all employers or their facilities may be able to accommodate the same. For now, these issues need to be litigated for there to be precedential certainty, as was required for the definition of sex under the EA 2010.
Due to the topical sensitivity of the ruling, employers should not be surprised by future clashes within the workplace. The ruling will undoubtedly lead to tension within the workforce, where an employer will need to tread carefully in protecting the rights of trans staff (which remain unaffected by the ruling) while avoiding inadvertently discriminating against staff who may hold gender-critical beliefs (which are no less a protected characteristic under the EA 2010, too) – keep an eye out for more on that on our website!
In the meantime, if you are an employer looking to ensure your policies and procedures are compliant with the new changes, or you are an employee/worker that may wish to obtain advice or assistance in relation to a breach of your employment rights relating to the above or in general, then please do not hesitate to contact our specialist employment team: employment@curzongreen.co.uk, for assistance.