What the UK Supreme Court ruling on the definition of 'woman' means for employers

For the avoidance of doubt the court was not seeking to get involved in the wider debate on gender. Instead it was answering a specific, but extremely important, question, namely what meaning is to be given to the terms “woman” and “man” under the Equality Act 2010.

The decision was that, for the purposes of the Equality Act, the terms "woman", and separately, “man” refer to a person’s biological sex.

This ruling applies even where a person holds a Gender Recognition Certificate (GRC). Accordingly, for the purposes of the act what matters is the sex a person had at birth.

This judgment followed a legal challenge to the Scottish Government's guidance on gender representation on public boards. The aim of the guidance was to secure greater representation for women. 

The challenge arose from the Scottish Government including trans women in its definition of "woman." The Supreme Court has overturned earlier rulings in determining that this broader definition was not consistent with the Equality Act.

Although this guidance was the subject matter of the challenge, given the scope of the Equality Act, the implications of this decision go well beyond the push for greater gender equality on boards.

This is understandably a sensitive subject. In this post, we are focussing purely on the legal position as it stands and address some practical questions employers now need to consider.

The bigger picture for employers

Single-sex spaces and provisions

The ruling provides greater clarity for employers who provide single-sex facilities.

There are occasions where provision of single sex facilities may not only be permissible but also compulsory.

In relation to this much focus has been on toilet facilities, or “conveniences”.

There is a duty on employers to provide separate conveniences for men and women unless “each convenience is in a separate room the door of which is capable of being secured from inside.” Accordingly, if the facilities follow the common set up of having cubicles in a single space, then access should be determined by biological sex.

Although the judgment brings some clarity it is unlikely to avoid further disputes. In particular, should employers create specific toilet facilities for trans employees or those who do not wish to disclose their biological sex?

For many the solution may lie in having more unisex facilities. As I’ve said, this is permissible if the conveniences consist of single rooms with a lockable door.

Protection for transgender employees

The Supreme Court was at pains to emphasise trans men and woman were not deprived of statutory protection. Further this protection is not dependent on having a gender recognition certificate.

In particular, there is still protection against unlawful discrimination under the Equality Act albeit the definition of the relevant protected characteristic focusses on “gender reassignment”.

This refers to a “person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex and a reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.”

Freedom to express beliefs

Although not itself an issue for the Supreme Court, one particular element that has arisen from the wider debate is the right to express gender-critical or pro-trans inclusion beliefs in the workplace.

The Equality Act protects individuals from discrimination based on philosophical belief (similar to religion). Recent cases have confirmed that strongly held beliefs about sex and gender — on either side of the debate — may qualify for protection.

Arguably this represents a shift in that some earlier judgments appeared to suggest that a belief “women” was limited to those of the female biological sex might not merit protection. That position has now been firmly rejected.

The law makes an important distinction between holding a belief, which may be protected, and how that belief is expressed. The latter has to be balanced with the need to respect the rights and dignity of others.

Put broadly an employer should not disadvantage any employee due to their beliefs about sex and gender but should not ignore occasions where the beliefs may be expressed in an unreasonable way which gives offence to, or disadvantages, others.

What next?

The UK and Scottish Governments are still working through the practical implications of the judgment. This includes likely detailed reviews and revision of both statutory and non-statutory guidance.

An important example of this is the Equality and Human Rights Commission issuing “An interim update on the practical implication of the UK Supreme Court judgment.” The update, issued on 25 April 2024, is available here.

In relation to toilet facilities this suggests that —

• Where [toilet] facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use

• Where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided

• Where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men

This is of some help, but it is clear that employers will have wider issues to consider and it is hoped that more detailed updated guidance will be forthcoming in the not too distant future.

Watch this space

This remains a highly sensitive and, at times, polarising issue. This blog post doesn’t seek to offer a moral or political perspective, but instead to help employers navigate the evolving legal landscape with care, clarity, and respect for everyone in the workplace.

As the implications of this ruling unfold — particularly considering ongoing cases and potential updates to government guidance — we'll continue to share further insights.

If you're reviewing your policies or looking for tailored advice on how this might affect your organisation, please do get in touch to see how we can help.