Supreme Court Delivers Definitive Answer on Equality Act 2010 Definition of Woman and Sex
The recent Supreme Court case For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) UKSC/2024/0042 has caused a lot of debate, media attention, and confusion. It should be noted that this article does not seek to express any opinion on the Supreme Court’s decision but rather aims to hopefully dispel some of the confusion for our members.
What was decided?
In brief terms, the Supreme Court ruled that in the Equality Act 2010 (‘EqA 2010’), “woman” refers to a biological woman and “sex” refers to biological sex. As many will be aware, the EqA 2010 is the legislation which prohibits discrimination on the grounds of defined protected characteristics, for example race or gender. At first glance, the Supreme Court decision does not seem like a controversial one. However, prior to the Supreme Court’s judgment, lawyers and beyond interpreted that a “woman” in the EqA 2010 was either a biological woman or a trans woman (biologically male) who held a Gender Recognition Certificate. The Supreme Court decision essentially says that a ‘woman’ for the purposes of the EqA 2010 does not include a trans woman who was born biologically male.
Are trans people now unprotected?
A misconception in some media outlets is that trans people are now left without any protection, which is wrong. The Supreme Court says in their judgment that trans people are still protected under the gender reassignment provisions in the EqA 2010. What this means is that a trans person could still bring a claim for direct discrimination, indirect discrimination, or harassment under the EqA 2010. The trans person would not need a Gender Recognition Certificate for these purposes either to be protected.
For example, a trans woman (born a biological man) who is treated less favourably because of the fact they have the protected characteristic of gender reassignment would be protected. In other words, is the trans woman treated less favourably compared to a comparator who is the same in all material aspects besides not having the protected characteristic of gender reassignment?
Practical impacts on your business
The majority of the practical changes that are predicted are not relevant to the motor industry. The main practical change we envisage will be related to single-sex facilities in your workplace. It was widely understood before the judgment that single-sex facilities like bathrooms operated under biological sex rather than self-identified gender. This judgment now confirms this position as correct. (Please note that in legal terms, it is not mandatory to have single-sex arrangements for services open to the public (like gym changing rooms for example).
A lesser-publicised fallout from the judgment might be disputes between employees who hold strong opposing opinions on the judgment. It would be prudent to review any bullying and harassment policy you have and ensure that employees are aware of their obligation to respect other people’s opinions and that they feel able to communicate and make grievances if necessary.
What Next?
The Government are now under pressure to amend the EqA 2010 to reflect the Supreme Court’s decision, especially to give guidance on the practical changes of the judgment. On that note, the Equality and Human Rights Commission are said to be producing guidance for organisations and employers. We will provide more information once that guidance is available.
As always, this advice is general in nature and will need to be tailored to any one situation. As a MILS member you have access to the MILS Legal advice line, as well as several industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
