EHRC rush out an interim update following the Supreme Court judgment

The Equality and Human Rights Commission has published an interim update on the practical implications of the Supreme Court judgment earlier this month on the meaning of “sex” in the Equality Act. Definitive guidance is urgently awaited because the ruling leaves unanswered many questions about how the Act is now to be implemented, most notably in relation to the rights of trans people.

Background

The Supreme Court decided that when used in the Equality Act ,“sex” means biological sex (used in the judgment to describe the sex of a person at birth) and that man and woman have corresponding meanings. Trans people continue to have the protected characteristic of gender re-assignment, and are also protected against sex discrimination in some circumstances. But, even with a gender recognition certificate, they will not be able to change their biological sex for the purposes of the Act.

The factual scenario the Supreme Court dealt with was limited to the representation of “women” on public boards in Scotland. But although it was dealing with a relatively obscure corner of equality law, it was concerned to establish a clear interpretation of “sex” and related terms across the whole of the Equality Act.

That means that while nothing in the Equality Act has been changed – and all the existing protections and exceptions remain in place – some provisions will need to be understood in a different way following this ruling. Definitive guidance from the Equality and Human Rights Commission on the practical implications of this decision is urgently awaited. In the meantime, we have outlined our views at this point.

Practical implications: Defining your terms

When exploring the practical implications of the decision, it's important to focus on the underlying provisions of the Equality Act that are engaged. The Act is divided into a number of different parts – for example employment, education and goods and services, which share common definitions, but which confer different protections and exemptions. Other equality-related obligations derive from separate legislation, which is not directly affected by the Supreme Court’s ruling, although it may have an indirect impact. The requirements in relation to the provision of single sex toilets in the workplace, which we will deal with later, are one obvious example.

One problem with the EHRC’s interim update is that it conflates employer’s obligations in relation to single sex facilities with those of public service providers, though the underlying legal framework is different. It promises to update its Code of Practice on services, public functions and associations by the end of June, but doesn’t mention changes to the separate Employment Code, which we think will also be required.

Employment implications

Arguably the most far-reaching impact of this ruling relates to public services, sporting bodies and schools. In the remainder of this blog, however, we will focus on the narrower, but still complex, impact in an employment context. More nuances will no doubt emerge in the coming months, but for now we offer the following recommendations:

Reinforce inclusive messaging: While this decision has been welcomed by many women, it has left many trans people feeling marginalised and, in some cases, afraid. It is important that all staff appreciate and are reminded of the need to treat opposing viewpoints with respect, and to appreciate that both cis women and trans people are protected from discrimination and harassment. It is likely to be helpful to engage staff, potentially through staff networks for larger employers, and signpost how employees could share their views or concerns directly with the organisation regarding the ruling and its practical implications. Engagement is likely to minimise the risk of an individual challenge while enabling the best way forward to be carefully considered.

Review use of single sex toilets and other facilities: Employers are required by the Workplace (Health, Safety and Welfare) Regulations 1992 to provide appropriate single sex toilets for their workers (plus washing and changing facilities where required) unless each facility is provided in a separate room with a lockable door (not a traditional cubicle) intended for the use of one person at a time. Many organisations’ policies have supported trans staff to use the facilities appropriate to their acquired gender. Any such policies will need to be reviewed in the light of this decision, though in the longer term it is likely to accelerate a move towards the provision of private unisex facilities with lockable doors.

The ECHR’s interim update states that while trans women (biological men) should not be permitted to use female single sex facilities or trans men (biological women) the male single sex facilities, they “should not be put in a position where there are no facilities for them to use”. The interim update doesn’t address how employers and their staff should manage in workplaces where there are no suitable alternative facilities.

Revisit wording of policies: Organisations will need to review their diversity and inclusion and related policies (this may include, for example, health and safety and social media use policies), to make sure that they don’t conflict with the Supreme Court’s interpretation of the Equality Act.  

It will take months, if not years (with further guidance, an updated Code of Practice and legal challenges), for the full implications of this ruling to be understood. How each individual employer chooses to respond in the meantime will vary and should be considered carefully, including taking legal advice as needed. 

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