Supreme Court Clarifies the Meaning of ‘Sex’ in the Equality Act

Implications for Employers

The Supreme Court judgment issued yesterday (16^th April 2025) in the case of For Women Scotland Ltd v The Scottish Ministers has provided clarity on the definition of “sex” within the Equality Act 2010 (EA 2010), a decision that carries significant implications for employers.

The court’s ruling directly addresses the interpretation of “sex,” “man,” and “woman” as used in the Equality Act, particularly in relation to individuals with a Gender Recognition Certificate (GRC) obtained under the Gender Recognition Act 2004 (GRA 2004).  

It is one of several cases decided recently that seeks to balance the rights and protections of what can seem to be competing ‘protected characteristics’.

Background

In this case the Supreme Court had to consider statutory guidance which was issued by Scottish Ministers stating that a person with a gender recognition certificate recognising their gender as female is considered a woman for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018 (“ASP 2018”). This statutory guidance was challenged by For Women Scotland Ltd, who are a group of women from Scotland who work to ‘protect and strengthen women and children’s rights’.  

The Supreme Court ruled in favour of For Women Scotland, clarifying that under the Equality Act a persons sex is as recorded at birth.

Key Takeaways for Employers

‘Sex’ Refers to Biological Sex

The Supreme Court has confirmed that, in general, the terms “sex,” “man,” and “woman” in the Equality Act 2010 refer to biological sex, being their sex as recorded at birth. This clarifies a previously contested area, providing employers with a more solid foundation for applying the Equality Act.  

A Gender Recognition Certificate Does Not Change ‘Sex’ for All Purposes

While a gender recognition certificate changes a person’s legal sex for the purposes of the Gender Recognition Act, this does not automatically extend to all provisions of the Equality Act 2010.

Employers should be aware that they cannot always treat a trans person with a gender recognition certificate as being of their acquired sex in every situation governed by the Equality Act 2010.  

Implications for Single-Sex Services and Spaces

The judgment has particular relevance for employers providing single-sex services or facilities (e.g., changing rooms, toilets). The ability to provide these services based on biological sex is upheld in certain circumstances, offering clearer guidance for employers in managing these situations.  

Pregnancy and Maternity Rights

The ruling indicates that provisions related to pregnancy and maternity in the Equality Act 2010 are specifically concerned with biological women. Employers must continue to ensure that their policies and practices fully protect the rights of employees related to these areas.  

Equal Opportunities Policies

Employers should review their equal opportunities policies to ensure they accurately reflect the Supreme Court’s interpretation of “sex” while also adhering to their obligations not to discriminate against employees with the protected characteristic of “gender reassignment.”  

The Protection from Discrimination Remains Intact

The Supreme Court’s interpretation of the Equality Act 2010 in this case does not remove the protection for trans people, with or without a gender recognition certificate, who continue to have protection under the Equality Act from discrimination on the ground of gender reassignment, which includes protection from harassment.

Need for Careful Application

Employers will need to carefully consider how to apply the Equality Act 2010 in specific situations, balancing the rights and needs of all employees, including both cisgender and transgender individuals.  

Recommendations for Employers

1. Review and update policies

Employers should review and update their equality and diversity policies, single-sex service provisions, and any other relevant workplace policies to ensure they align with this judgment.

2. Seek legal advice

When in doubt, employers should seek legal advice to ensure they are correctly applying the Equality Act 2010 in specific situations and avoiding potential discrimination claims.

3. Provide training

HR staff and managers will benefit from training to understand the implications of the judgment and how to implement it fairly and sensitively in the workplace. Including ensuring that all employees understand the organisations policy on equality and the requirements of the Equality Act in totality, not just related to this judgement. Remembering that there is protection from discrimination and harassment for trans persons.

4. Promote an inclusive workplace

It is crucial to foster a workplace culture that is respectful and inclusive of all employees, regardless of their sex or gender identity.

To conclude

This judgment provides important clarification for employers on a complex and sensitive issue. By understanding the implications and taking proactive steps, employers can ensure they comply with the law while creating a fair and respectful work environment.

You can read the full judgement here: https://supremecourt.uk/cases/uksc-2024-0042

Need help?

If you would like more information or to discuss the implications for your organisation or to arrange training for your staff,  please do not hesitate to get in touch – 01983 897003.