On 16 April 2025, the Supreme Court issued a landmark ruling that the terms “man”, “woman” and “sex” refer to biological sex (only) under the Equality Act 2010 (EqA 2010) – ie sex as per a person’s birth certificate. The outcome impacts all areas where sex discrimination law is relevant, including the workplace. However, the practical implications are far from clear, or straightforward.
In this article we intend to provide an overview of the decision and some initial considerations for employers, in view of the decision.
The Decision
This unanimous judgment arose from a case brought by the group, For Women Scotland, who challenged legislation which allowed the inclusion of transgender women in a quota of women required on public boards in Scotland. The case centred on the question of whether a Gender Recognition Certificate (“GRC”) which, according to legislation (Gender Recognition Act 2004), changes a trans person’s gender for “all purposes” (subject to limited exceptions), also changes a person’s gender to their certified gender under the EqA 2010. The group For Women Scotland argued that it should not, on the basis it fails to recognise the protection of biological sex under the EqA 2010.
In coming to its decision that the definition of sex according to the EqA 2010 is biological, the Supreme Court considered that:
- The EqA 2010 was based on earlier legislation, the Sex Discrimination Act 1975 where “man” and “woman” refer to biological sex. As these definitions were not updated in the EqA 2010 (albeit later regulations added protection from discrimination for trans people), continuation of these old definitions must have been Parliament’s intention.
- The EqA 2010 must be interpreted in a clear and consistent way that is predictable, workable and capable of being consistently understood and applied in practice by a wide range of duty-bearers. It considered that including certified sex within the definition would cause practical difficulties in certain areas, such as discrimination protection related to pregnancy and sexual orientation and in relation to the exceptions which allow for single-sex sports, associations, services, communal accommodation and higher education institutes.
- Although a GRC changes a person’s gender “for all purposes”, other legislation can disapply this rule. The EqA 2010 must disapply the rule because otherwise the protected characteristic of sex is cut across in a way which is incoherent.
- A certificated sex interpretation would essentially give trans people with a GRC greater rights than those without, creating two subgroups within the protected characteristic of gender reassignment.
- The Supreme Court emphasised that this decision does not reduce trans people’s protections from discrimination (regardless of whether or not they have a GRC). Indeed, trans individuals will continue to be protected under the EqA 2010 on the grounds of gender reassignment.
What Next?
Despite being intended to bring clarity to the interpretation of the EqA 2010, this decision gives rise to a whole host of potential issues and uncertainties for employers and employees. The Equality and Human Rights Commission (“EHRC”) has released some interim guidance, which states in relation to workplaces, that sufficient single-sex toilets, changing and washing facilities (where these facilities are needed) are compulsory. Trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities. One obvious solution is to provide a gender-neutral option; however, this may not be possible in all workplaces. So, what then?
The decision also presents issues around equal pay, since, at present, the equal pay rules are based on a comparison between a man and woman. If sex is based on biological sex, a trans woman could not compare herself with a man (or vice versa) for the purposes afforded by equal pay protections. Similar issues exist in relation to gender pay gap reporting.
The practicalities are certainly knotty and detailed guidance on the practical implications for the workplace is urgently needed. We note that the EHRC promises an updated Code of Practice, although this is not expected to be provided to the Government for ministerial approval until the end of June. Furthermore, it is understood that the Code will be aimed at supporting service providers, public bodies and associations, rather than employers specifically.
In the meantime, we would caution against knee-jerk reactions. Employers may, however, start to think about:
- Policies: reviewing policies and practices and considering if they reflect the Supreme Court decision. You may consider how they might offer clear guidance on single-sex spaces, and company facilities to ensure the rights of men, woman and transgender workers are all equally and fairly accommodated. It may be prudent to wait for further guidance before amendments are actually implemented.
- Risk assess: evaluate if your workplace will actually be impacted by this decision, and if so how/ in what areas. Consider the associated risks and assess whether any proposed actions are proportionate.
- Support for employees: the most pressing practical consideration may well be managing tensions at work in view of the debate and widespread reporting around this decision. Consider whether proactive steps can be taken to support the wellbeing of staff members impacted by this decision. You should also continue to ensure protection for trans people in your workplace under the EqA 2010. Address any discrimination or harassment concerns promptly under your usual policy.