UK: employers may need to review policies following Supreme Court ruling on meaning of 'sex'

Update 28 April: the EHRC has published interim guidance for employers and service providers here.  A two-week consultation on an updated Code of Practice for service providers is to be launched in mid May, and submitted for ministerial approval by the end of June 2025.

Update 14 May: the EHRC has announced that the consultation period will be extended and run from mid May to 30 June 2025.  The EHRC will seek views on whether the proposed updates clearly articulate the practical implications of the judgment.

Update 20 May: the consultation on the services Code of Practice updates has now been published, here.  The Chair of the EHRC has stated that it is aiming to have the final version of the Code ready by the end of July, for Parliament then to review and potentially approve by late Autumn 2025.

Employers may need to review policies relating to workplace facilities, data collection and staff training in light of the Supreme Court's decision in For Women Scotland Ltd v Scottish Ministers that, for the purposes of the Equality Act 2010, the definitions of 'woman', 'man' and 'sex' are by reference to biological sex. 

The Supreme Court has ruled that to include in those definitions trans persons with a gender recognition certificate in their acquired gender would render certain provisions of the Act unworkable or incoherent, and it is important that the Act be interpreted in a clear and consistent way throughout.  

The Court took pains to reiterate that trans people remain protected by the Act from discrimination on the ground of gender reassignment, and can also claim direct and indirect discrimination and harassment on the ground of perception or association with their acquired gender. 

The implications will be greatest for businesses providing single-sex services to the public, but all employers should review their provision of single-sex facilities in the workplace.  The EHRC's revised Code of Practice for service providers may be useful on this issue; the EHRC has said it will urgently update the Code to reflect the Supreme Court ruling and, subject to ministerial approval, it will be laid before Parliament before the summer recess.  The Supreme Court ruling suggests that the use of single-sex toilet and changing room facilities should be delimited by biological sex but, given the need to ensure dignity, privacy and health and safety of all employees, providing at least some gender-neutral facilities (in separate rooms lockable from the inside) is likely now to be a high priority.

Employers may also need to reflect the Supreme Court ruling in any positive action measures or genuine occupational requirements used and in data collection.  Staff training should be checked and updated if appropriate and, particularly if the issue has become a hot topic of conversation in a workplace, employers may wish to reiterate the need for mutual respect and tolerance of others' views - and for care to be taken in how and when views are expressed in a workplace setting.

Please do get in touch with your usual HSF contact if you would like to discuss the implications of this ruling for your business.