What does the Supreme Court ruling on definition of a woman mean for employers?

The Supreme Court issued a landmark ruling over whether a transgender person with a gender recognition certificate (GRC) that recognises them as female can be regarded as a woman under equality laws. The judgment considered the interaction between the Equality Acct 2010 and the Gender Recognition Act 2004. The Supreme Court ruled, unanimously, that the definition of woman and sex in the Equality Act 2010 refer to a biological woman and biological sex rather than what was described as certified gender (as a result of a person changing their gender and gaining a gender recognition certificate reflecting their acquired sex under the 2004 Act).

The ruling means that a person with a gender recognition certificate (GRC) acknowledging their gender as female should not be regarded as a woman for the purposes of a sex discrimination claim under the Equality Act 2010 and does not fall into that protected characteristic or definition. The judgment is the culmination of three-year long case brought by the campaign group For Women Scotland (FWS) and their appeal to the Supreme Court. FWS argued that sex-based protections should only be available to people who were born female. The case was brought in Scotland and centred on the definition of “woman” in Scottish legislation when FWS challenged the inclusion of transgender women in the definition of women for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.

Delivering the decision to allow FWS’ appeal, Lord Hodge stated the full judgment to be handed down would explain how “the Equality Act 2010 gives transgender people protection not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in their acquired gender.” The Court was keen to emphasise that discrimination protection in the workplace already extends to transgender employees, workers and applicants for employment.

What do employers need to know?

It is important to remember, though, that the Act already prohibits discrimination against a person linked to their transgender status, and this includes the fact they are going to transition their gender, are proposing to do so, or have completed that process. That protection applies early, by including an individual who is proposing to undergo a gender reassignment process (as well as those undergoing such a process and those who have changed gender).

The Act has specific provisions to ensure that where an individual needs time off or is absent due to the transition process, they are treated consistently with other staff and not denied that time off because of the reason for their absence.

There is still some protection where a person who is transgender is discriminated against because of their perceived sex rather than because they are trans, given the Equality Act allows a claim of discrimination based on the discrimination, and as a result of a claimant holding a perceived protected characteristic.

Also, there are strict laws which protect an individual who holds a gender recognition certificate giving them privacy rights and restricting the use of any information about their previous gender as special data; this protection applies in the workplace and to those providing services. This decision does not change that.

Finally, the risks for employers often arise around harassment and where hostile or inequitable treatment occurs against a transgender person. For example, where a male-to-female transgender employee is treated less favourably than a biological woman. Another example is where comments made about her, or her appearance, are linked to her transgender status: that could be unlawful harassment based on their protected transgender characteristic.

It is important that employers appreciate the significance of the Supreme Court judgment and that it is limited to a specific point regarding the definition of woman in the Equality Act but that it does not remove or change an employer’s obligations in the workplace or the need to behave fairly and equitably in the treatment of those who are transgender.

If you are an employer and have any questions about the judgment, please contact employment lawyer Audrey Williams.