The recent Supreme Court gender recognition ruling in For Women Scotland v Scottish Ministers has been controversial, sparking much debate online and protests across the UK. The consequences of this ruling are widespread and extend far beyond which type of public toilet an individual is expected to use. So what can employers expect to see following this ruling?
In this case, the Supreme Court reviewed the relationship between the rights of trans individuals to obtain a Gender Recognition Certificate (GRC) under the Gender Recognition Act, and the definition of “sex” under the Equality Act.
The Gender Recognition Act states that once a GRC is issued, the individual’s gender becomes “for all purposes” the acquired gender, but this is subject to the provisions of “any other enactment or any subordinate legislation”. The question was therefore, if these individuals would be protected under the Equality Act from discrimination on the grounds of sex (i.e. their acquired sex rather than original, biological sex).
The discussion within the Supreme Court follows closely from the recent case of M Forstater v CGD Europe and others, in which it was confirmed that gender critical beliefs (the belief that biological sex is immutable and cannot be altered) are protected under the Equality Act as a philosophical belief. This would mean that an individual who, regardless of whether a GRC is issued or not, believes an individual is their biological rather than acquired sex, is protected in law. The repercussions of this case demonstrated the need for coherence between the two laws.
The Supreme Court held that the Equality Act could not be read in the same way as the Gender Recognition Act. It was held that to do so would make the reading of the Equality Act incoherent and unworkable, causing confusion and potential undermining of the protections available to individuals including those relating to pregnancy and maternity, separate spaces and single-sex services, services available to those of a particular sexual orientation (the argument that lesbian-only spaces would become unworkable), communal accommodation, single-sex charities, and women’s fair participation in sport.
The Supreme Court also held that to use the definition of “sex” in accordance with the Gender Recognition Act, would mean that trans persons who have been granted a GRC would be granted greater rights than trans persons without a GRC, despite both persons sharing the same protected characteristic of gender reassignment.
Much discussion has taken place regarding the debate involving toilets, and whether trans individuals will be permitted to use a single-sex toilet which reflects their acquired gender. In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed. The Equality and Human Rights Commission has confirmed, following the Supreme Court’s ruling, that the following rules apply to workplaces and services that are open to the public:
- Trans individuals are not permitted to use the facilities of their acquired (rather than biological) gender, with the reasoning given that this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex.
- In some circumstances, trans individuals are also not permitted to use the facilities of their acquired gender.
- Where single-sex facilities are available to men and women, trans people should not be put in a position where there are no facilities for them to use.
- Where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided.
- Where toilet, washing or changing facilities are in lockable rooms (not including cubicles) which are intended for the use of one person at a time, they can be used by either women or men.
The implications of this are naturally confusing and widespread. The case remains that, whatever facilities are available, there have to be sufficient facilities available to trans persons.
Further practical implications for employers are as follows:
- The law has not changed regarding general occupational requirements. An employer is permitted, in limited circumstances, to require that a role is filled by an individual of a certain sex (for example, a worker at a women’s shelter). It remains the case that trans individuals can be excluded from these roles, but the employer must be able to justify the requirement in order to avoid it being unlawful discrimination.
- The equal pay implications remain problematic. As the equal pay rules require comparisons between men and women, a trans woman cannot compare herself with a cis (a man whose gender identity aligns with the sex he was assigned at birth) man for these purposes (likewise a trans man could not compare himself with a cis woman). Whilst this remains a live issue, the individual does have the option of bringing a direct sex discrimination claim about pay instead based on the perception that she is female.
- Likewise, there is confusion regarding gender pay gap reporting. It seems that, under the Equality Act (which uses the words “male” and “female”) reporting will need to be carried out using the biological definition of these terms, however, there is no definition of the terms ‘men’ and ‘women’ in the gender pay gap regulations, and it is for individuals to decide within which category they fall into (or if they do not fall into either). The current government guidance recognises that this is a sensitive issue. Guidance suggests that employers use the information the individual has provided to them (for the purposes of payroll/HR). Individuals can, however, be excluded from the calculations if they do not self-identify as either male or female.
- A pregnant trans man has all the same pregnancy and maternity rights as a cis woman, and cannot be discriminated against due to pregnancy or maternity leave.
The Supreme Court’s ruling has provided some well-needed clarity on the position regarding the rights of trans persons in the workplace and public spaces, although the position is not without its controversy. Notwithstanding the above repercussions of this decision, the biggest challenge now facing employers will be rising tensions in the workplace. All disputes will need to be handled sensitively, and a well-drafted equality, diversity and inclusion policy will be essential as the above measures are followed.
The above ruling is undoubtedly difficult reading for the trans community in particular, and measures should be taken to reach out to workforces and ensure that employees are supported.
How Moore Barlow can help
At Moore Barlow our business employment solicitors are dedicated to providing exceptional legal services to employers of all sizes. With years of experience in the field, we understand the complexities of employment law and offer practical solutions to ensure your business operates smoothly. Our team is committed to delivering tailored advice and support to help you manage your workforce effectively and mitigate any potential risks. Choose us for expert guidance and peace of mind.
