WOMAN SCOTLAND
Practical implications of For Woman Scotland v The Scottish Ministers
This month we saw the Supreme Court (the Court) clarifying that ‘sex’ in the context of the Equality Act 2010 (the Act) refers to biological sex and not acquired gender or legal sex recognised through a Gender Recognition Certificate (GRC). The case (For Women Scotland Ltd v The Scottish Ministers) challenged Scottish Government guidance which had interpreted “woman” to include transgender women, in a law aimed at improving gender representation on public boards.
This means that, under the Act:
A ‘woman’ is a biological woman or girl (a person born female)
A ‘man’ is a biological man or boy (a person born male)
If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC).
A trans woman is a biological man
A trans man is a biological woman
“We would recommend reviewing your relevant EDI policies to ensure these reflects the legal definition of sex as set out above. We also recommend updating any of your training content to explain the clarified legal definitions of “sex” and “gender reassignment” under the Act.”
This judgment has implications for many organisations, including:
workplaces
services that are open to the public, such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services
sporting bodies
schools
associations (groups or clubs of more than 25 people which have rules of membership)
Single sex facilities
The Equality and Human Rights Commission has said it is currently working ‘at pace’ to issue an updated Code of Practice to support service providers, public bodies and associations to understand their duties under the Equality Act. In the meantime, it has issued the following guidance for workplaces on the issue of single-sex toilets:
It is compulsory for workplaces to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.
Trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological woman) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
Where possible, employers should provide a mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities
Where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men
The wider impact of the Judgement
The Judgment essentially means that trans women cannot insist on being treated in the same way as biological women in all situations, even if they have a GRC.
The Court was however at pains to emphasise that transgender employees remain protected from discrimination under the gender reassignment provisions of the Act - gender reassignment being 1 of 9 protected characteristics (PCs), alongside sex, age, disability etc.
In the Act, gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign a person’s sex. Individuals do not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender, and it does not matter whether they have applied for or obtained a GRC.
“It will now be more important than ever to ensure your managers know to handle conversations about these issues sensitively and with kindness and empathy - this case has proved to be extremely divisive, and trans individuals have expressed concern that this Judgment has led to them feel vulnerable and angry.”
Transgender employees are also able to bring a discrimination claim because of their perceived sex.
The Supreme Court gave the following example:
“a trans woman who applies for a job as a sales representative and the sales manager thinks that she is a biological woman because of her appearance and does not offer her the job even though she performed best at interview and gives the job instead to a biological man. She would have a claim for direct discrimination because of her perceived sex and her comparator would be someone who is not perceived to be a woman. The fact that she is not a biological woman should make no difference to her claim.”
In other words, transgender individuals (with or without a GRC) are protected under the Act if they face unlawful sex discrimination either in their actual sex or their target sex.
Practical next steps
We would recommend reviewing your relevant EDI policies to ensure these reflects the legal definition of sex as set out above. We also recommend updating any of your training content to explain the clarified legal definitions of “sex” and “gender reassignment” under the Act.
In terms of the day-day management of employees, we do not believe the Act has changed anything – employers remain under a duty to ensure – in so far as possible – that employees are not discriminated against on grounds of any PC.
It will however now be more important than ever to ensure your managers know to handle conversations about these issues sensitively and with kindness and empathy - this case has proved to be extremely divisive, and trans individuals have expressed concern that this Judgment has led to them feel vulnerable and angry. It will be important for managers to lead from the top and ensure that debate does not cross the line into harassment or discrimination territory, and that inclusion and respect always remain the key focus.