UK Employment Insights: Unpacking the Supreme Court Ruling in For Women Scotland v The Scottish Ministers

Amelia Bunce, Trainee Solicitor

Amelia has been supporting John Randle in the family team, dealing with all aspects of family law, specialising in high-net-worth divorces. She also works on contentious and non-contentious employment matters, and personal injury claims – including those arising in connection with historic child abuse.

The highly controversial case of For Women Scotland v The Scottish Ministers has now concluded, with the Supreme Court ruling that a person’s sex should be identified as their biological sex at birth. There has been a lot of discourse online, but what does this actually mean in the workplace?

What is the Equality Act 2010?

The Equality Act 2010 (the ‘Act’) was introduced in the United Kingdom to replace previous discrimination law that existed at the time. It brought protection against direct and indirect discrimination, harassment and victimisation from services and public functions (such as hospitals, shops, restaurants), workplaces, places of education, associations and public transport.

To be able to bring a claim under the Act, a person must have experienced discrimination on one of the following grounds:

• Age
• Disability
• Race
• Religion or belief
• Sex
• Sexual orientation
• Gender reassignment
• Marriage/civil partnership
• Pregnancy/maternity

What does the Supreme Court ruling mean moving forward?

The Supreme Court have now ruled that, under the Act, a person’s ‘sex’ should be defined as their biological sex. So, one can only bring a claim for sex discrimination under the Act for discrimination against their biological sex.

This means that transgender men are defined to be biologically women, and transgender women are defined to be biologically men. Even if a Gender Recognition Certificate has been issued, under these new changes, a transgender person cannot identify as a different gender than that which they were assigned at birth.

This ruling does not bar transgender people from bringing discrimination claims on the basis of gender reassignment. In fact, the Supreme Court commented that transgender people are still protected under the Act, just not on the basis of a different sex than their biological one.

However, in defining “sex” as one’s biological sex at birth, this decision affects how transgender people are recognised under the Act. The most notable and discussed knock-on effect of this will be transgender people’s access to single-sex spaces.

What does this mean for employers/employees?

It is still unclear to what extent this new ruling will affect both employers and employees. The Equality and Human Rights Commission have now released interim guidance as to what this means in practice. 

Employers must now provide ‘sufficient’ single-sex toilets and changing / washing facilities (where applicable). Failure to provide this could result in a claim for indirect sex discrimination against women if the only provision is mixed sex.

Workplaces and services open to the public: Employers of workplaces that are open to the public are subject to additional obligations.

Firstly, in these types of workplaces, trans women cannot be allowed to use women’s facilities and vice versa. In some instances, trans women may be able allowed to use men’s facilities, and the same for trans men in women’s facilities – however, there should never be a situation where transgender people are unable to use any facility at all. Where possible, it is advised that mixed sex toilets and other facilities should be made available in addition to single-sex spaces.

Where toilets or other 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.

We anticipate that more guidance will be released in the coming weeks.