Employers will be aware of the widely reported ruling in For Women Scotland Ltd v Scottish Ministers, in which the Supreme Court held that the term ‘sex’ in the Equality Act 2010 (the Act) refers to the biological sex of the individual. The media has reported that some say that this will protect the safety of women in single-sex environments, while others argue this will only undermine the safety and dignity of transgender individuals and lead to further blanket exclusions in areas not covered by this legislation. Amongst this public discourse, employers will have a number of questions, but it is important that they are aware of what the ruling says, how they should interpret it and the legal implications for their workplace and employees. 

What brought on this ruling?

This ruling came after s2 of the Gender Representation on Public Boards (Scotland) Act 2018 defined ‘woman’ to include transgender women for the purposes of representation on public boards. This interpretation relied on s9(1) Gender Recognition Act 2004, which stipulates that a transgender person with a gender recognition certificate (GRC) should have their acquired gender recognised ‘for all purposes’. However, s9(3) qualified this, stating that this was subject to a provision made by ‘any other enactment or subordinate legislation’. As the court considered that the Act was incompatible with s9(1), s9(3) applied and so it was held that under this legislation, the legal sex of a transgender person with a GRC should be determined by their biological sex.

How does the ruling affect employers under the Act?

The Supreme Court ruling will directly affect how employers apply the Act, particularly how they provide single-sex spaces for employees, such as toilets, changing rooms and sleeping facilities. Employers should note that their provision of single-sex spaces and facilities does not fall under the goods and services provisions of the Act, which does cover single-sex public facilities such as toilets (though these provisions may be relevant when providing services to customers or clients). 

There are no specific provisions in the Act for an employer's obligations for these spaces and how employers deal with the provision of these spaces for workers will fall under the legislation's employment provisions. 

It is important to say that the definitions given by the Supreme Court in this case only apply to the Act, and so this is not necessarily a ‘one size fits all’ approach. 

Will employers always have to exclude transgender women from using women’s only spaces in the workplace?

Single-sex (based on biological sex) spaces and facilities qualify as ‘PCPs’ under the Act 2010. A PCP is an employer’s policy, rule or practice that applies to employees, even if it isn't formally written down. It is highly likely that many employers have a PCP of offering single-sex changing or toilet facilities (for example, there are existing rules on the provision of separate toilet and shower facilities for men and women in the Workplace (Health, Safety and Welfare) Regulations 1992). 

PCPs putting those with protected characteristics at a disadvantage may be deemed to cause indirect discrimination, unless the PCP can be objectively justified as a proportionate means of achieving a legitimate aim. A transgender woman could argue that they are put at a disadvantage by being excluded from a female-only space in the workplace. With the clarification of the legal definition of ‘sex’ in the Act, this may be deemed to be a proportionate means of achieving a legitimate aim such as ensuring the safety, dignity and privacy of women and complying with existing health and safety laws. 

It is important to note that employers may not be able to impose a blanket ban on transgender women using women’s-only spaces or facilities if there's no evidence of a legitimate aim. For example, in a workplace with a small number of employees, if there are no issues with a transgender woman using the women's single-sex toilet, then it would be difficult to argue that there is a legitimate aim. It could be deemed discriminatory to exclude the transgender woman. 

Clearly this is a situation that needs to be kept under review, and very careful consideration would need to be had regarding conversations about this, in particular surrounding dignity and confidentiality (in some circumstances it is a crime for an employer to reveal that someone has a GRC or reveal their gender history). So often in employment law, we see examples of ‘competing rights’ being considered in litigation, and this area may now produce some cases of its own.    

Are transgender people no longer protected under the Act?

The judgment stressed that the Act continues to protect transgender people who are a ‘vulnerable and often harassed minority’ who ‘struggle against discrimination and prejudice as they seek to live their lives with dignity’. It emphasised that transgender people are protected from discrimination on the grounds of gender reassignment, as this remains a protected characteristic (a person does not have to have a GRC to fall within transgender protections under the Act). It also averred that transgender people will continue to be protected from direct discrimination, indirect discrimination and harassment on the ground of perception or association with their gender. 

The way an employer conducts itself in any conversations following this clarification in the law, and any steps that might be taken, need to be sensitive to avoid creating a degrading or hostile environment for transgender people. We caution against any knee-jerk decisions in excluding any group from specific spaces in the workplace – such decisions could create the environment we have cautioned against and may lead colleagues to speculate as to an individual’s gender identity.

What should employers be doing in response to this ruling?

In light of this, employers may need to review how they currently provide single-sex spaces, with this clarified definition of legal sex in mind and consider whether this new legal position will need to be applied to their workplace. They will also need to give careful consideration to how they approach difficult conversations, while aiming to be clear that they remain committed to being an inclusive employer (and ensure support networks are well signposted, such as to peer networks, HR and Employee Assistance Programmes). More generally, it would be a sensible time to review HR and ED&I policies and materials (including any training documents) to ensure language and definitions are appropriate. 

It is anticipated that the Equality and Human Rights Commission and others will seek to give guidance on the implications of this judgment, and we will share details of this when more is known. Please contact me if your organisation requires support in reviewing its arrangements or policies in respect of same-sex spaces.