Employers should review policies as court rules definition of a woman is based on biological sex
Judges at the UK’s highest court have unanimously ruled that the terms ‘man’, ‘woman’, and ‘sex’ in the Equality Act 2010 refer to biological sex, not acquired sex.
The issue came before the Supreme Court after a campaign group sued the Scottish Government over its target for increasing the proportion of women on public boards – including trans women and those ‘living as women’.
Trans women could previously be counted in female quotas on public boards, but this will no longer be the case after the landmark ruling.
The ruling struck down previous guidance that considered holders of gender recognition certificates (GRC) to be women in the eyes of Scottish law. But lawyers warn that this ruling will be referred to in many more disputes and policies as the trans debate continues.
Chelsea Feeney, an associate at Stevens & Bolton, argued that the ruling means businesses should review internal policies.
The ruling “could mean that a review of human resources policies and diversity training is necessary, to ensure they accord with the updated definition of a ‘woman’ in relation to biological gender without reference to those who have obtained a GRC,” she explained.
However, Feeney pointed out that businesses should note that the Equality Act 2010 still affords transgender people protection from discrimination through the protected characteristic of their gender reassignment.
“Transgender people are also still able to claim sex discrimination because they are perceived to be their acquired gender,” she added.
The UK Supreme Court was asked to review if a person with a full gender recognition certificate, that label themselves as female, is or is not a “woman” for the purposes of the Equality Act.
Before reading out the judgment, one of the Lord Reed said: “When we announce our decision on this case, some will be pleased some will be disappointed”.
Lord Hodge read out the full ruling, explaining: “The central question of this appeal is the meaning of the terms of woman and sex in the Equality Act 2010, if those terms refer to biological women or biological sex, or is a woman to be interpreted as extending to a trans woman with a gender recognition certificate.”
“By that, I mean a person born male who now possesses a gender recognition certificate, amending a female, and sex to be interpreted as including what I will refer to as certificated sex.”
He ruled that “the unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
“But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another,” he added.
Jonathan Mansfield, a partner at Spencer West, highlighted some practical issues for employers due to this legal decision.
“Certain rights which are currently available related to sex, such as equal pay, will only be available based on biological sex,” Mansfield noted.
His example is that a trans woman will not have the right to bring an equal pay claim on the basis that they are paid less than a (biological) man.
However, “there is specific protection against discrimination for those who have undergone or propose to undergo gender reassignment,” he added.
Polly O’Malley, a partner at Browne Jacobson, warned senior business leaders not to succumb to pressure and to “pause and understand their position.”
He noted that many policies “will remain just as important, and any knee-jerk reaction could cause more harm than good”.