‘Sex’ means biological sex – an overview of the Supreme Court ruling

In a historic and seismic judgment, the Supreme Court has declared that that the Equality Act 2010 (EA10 or the Act) definition of ‘sex’ means the biological sex of a person at birth. The ripple effect of the implications of this ruling will undoubtedly continue to unfold, with significant and heated debate ongoing as to the wider societal consequences on both women’s and trans people’s rights. 

Although not an employment law case, the ramifications of this ruling impact upon the workplace. We discuss some initial practical considerations for employers.

The case

In For Women Scotland Ltd v The Scottish Ministers [2024] UKSC 31, the Supreme Court had to address the statutory interpretation of the terms “sex”, “man, “woman”, “male” and “female”. The principal question was whether the EA10 definitions refer only to biological sex and biological women. Or, whether the Act also treats a person with a Gender Recognition Certificate (GRC) which recognises their gender as female, as a woman. 

For Women Scotland (a female group which campaigns for women’s rights) had challenged statutory guidance that the Scottish Parliament had issued which stated that: “where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman”. For Women Scotland argued this guidance was an error of law as the meaning of “woman” under the Act refers to biological sex. 

The definition of ‘sex’

The Supreme Court unanimously determined that, as a matter of ordinary language, Parliament intended that the words "man", "woman" and "sex" in the EA10 can only refer to biological sex and not certified sex. As a result, trans women who hold a GRC are excluded from the definition of “women”. 

Although considered, the court dismissed the idea that different definitions could apply for different sections or parts of the Act, as this could offend against the need for legal certainty with so many practical everyday consequences for so many in society.

The judgment reasoned that the outcome did not disadvantage or remove protection under the EA10 from trans people, who either do or do not hold a GRC. This was on the basis that they continue to be protected under the Act from direct and indirect discrimination, as well as harassment and equal pay.

What this means for employers

Whilst this ruling was intended to ensure that the “EA10 is interpreted in a clear and consistent way”, some of the practical realities are less than straightforward. Whilst there are many implications for employers, workplaces should first and foremost be mindful and sensitive to the trans people who are coming to terms with what the outcome means for them. The judgment does not change the fact that all staff are to be treated fairly. 

1. EHRC interim guidance

The Equality and Human Rights Commission (EHRC) has published interim guidance for employers and service providers on the practical implications of the Supreme Court judgment. Further guidance is pending but this initial publication seeks to highlight some key consequences of the judgment. 

Many employers will likely await the substantive guidance to be issued later this summer before jumping to make any significant workplace changes. 

2. Protection from discrimination and harassment

One thing that has not changed is the protection that any person with a protected characteristic has from discrimination and/or harassment. 

Sex, gender reassignment and sexual orientation are three of the nine protected characteristics under the EA10. A person will be protected from discrimination in relation to a protected characteristic, but also in relation to any perceived protected characteristic. 

A person who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex will have the protected characteristic of gender reassignment. There is no requirement to hold a GRC. A person will also be protected by the perception of a protected characteristic, for example their perceived sex. The judgment gives an example of a trans women’s job application being refused in favour of a biological man’s because she is perceived as female. In this situation, she would in theory have a direct sex discrimination claim. 

The same is true of harassment. It remains unlawful for a person to face unwanted conduct that is related to a protected characteristic which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The person need not actually possess the relevant protected characteristic in order to bring a claim. 

Therefore, in the wake of this ruling, employers will need to tread carefully to continue to balance the rights of different employee groups to ensure those with protected characteristics are not being subjected to unlawful differential treatment. 

3. Single-sex facilities - office toilets and changing rooms

In response to the outcome, some employers are already making changes. As both an employer and services provider, Barclays has been one of the first companies to publicly announce a change to their bathroom policy, prohibiting trans women from using female bathrooms. This is following the EHRC guidance that trans women “should not be permitted to use the women’s facilities” either in workplaces or public-facing services. The British Transport Police was also quick to state that “any same sex searches…are to be undertaken in accordance with biological sex”.

Employers may be more cautious in their approach. The EHRC guidance states it is compulsory for workplaces “to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities”. However, it goes on to say that “trans people should not be put in a position where there are no facilities for them to use”. Where possible, employers are tackling this by adopting for gender neutral toilets with lockable rooms (not cubicles). 

Policing the use of any single-sex facilities also becomes a thorny issue as trans people should not and cannot be forced to divulge their biological sex. Whilst directing trans people to use a different changing room may not constitute harassment in light of the Supreme Court ruling, any in appropriate work arounds could be discriminatory and/or constitute harassment if it has the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. 

Consulting with employees and sensitively handling any issues in the event they arise, will be key. 

4. Pregnancy and maternity

The relevant EA10 provisions on pregnancy and maternity will apply to any biological woman (either with or without a GRC). Therefore, any “woman” who becomes pregnant will retain all pregnancy and maternity rights and continue to be protected from discrimination due to pregnancy or maternity leave.

5. Gender pay gap reporting and equal pay

Biological sex may have to form the basis for gender pay gap reporting, given that the this obligation stems from the EA10. However, the gender pay gap regulations do not defined “man” and “woman”, and the government guidance tells employers to be “sensitive to how an employee identifies their gender”. Time will tell whether this guidance is updated, or employers may simply choose to exclude trans people from their calculations. 

The court also recognised issues in relation to a trans person’s ability to bring an equal pay claim depending on whether they do or do not hold a GRC. Following the ruling, a trans woman with a GRC will be unable to compare herself to a biological man in relation to an equal pay claim. However, she could bring a direct sex discrimination claim instead. 

6. Managing opposing beliefs

With much noise surrounding this judgment, it is understandably an emotive issue. However, all qualifying beliefs are protected under the law, which can include gender critical beliefs. Although the law has not directly changed in this respect, employers may find themselves having to mediate a range of opposing beliefs in the wake of this judgment. 

7. Policies and procedures

Employers would be wise to review their internal policies and procedures to ensure they align with the judgment. Such as those relating to family leave, pregnancy, maternity and menopause. Proactive steps should also be taken to re-iterate any diversity, equity and inclusion policies or initiatives, demonstrating a commitment to fostering an inclusive, diverse and supportive environment for all staff.

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Should you have any questions related to the Supreme Court judgment, issues as they arise or require support in updating or reviewing your policies or procedures, please do not hesitate to contact the Employment team here at Bristows. 

For more information on how we can support you to support your employees, please contact Manon Rattle or another member of the Employment Team.