Reflections on the EHRC Interim Guidance: What Employers Need to Know after the Supreme Court’s Ruling in For Women Scotland v The Scottish Ministers on the meaning of “woman”
In this article, Penny Morrison considers what employers need to know following the Supreme Court’s decision earlier this month and what they should be doing to ensure legal compliance while at the same time acting with compassion and consideration for all.
Introduction
The recent Supreme Court decision on the definition of “woman” in the Equality Act 2010, and the Equality and Human Rights Commission’s interim guidance, marks a pivotal moment in the evolution of the UK’s approach to equality. For employers, the implications are significant and require careful attention not only to legal compliance but also to workplace culture and inclusivity.
What was the Supreme Court’s decision?
In a nutshell, the Supreme Court clarified that, under the Equality Act 2010, “woman” means a biological female and “man” means a biological male. “Sex” refers to biological sex, not legal or self-identified gender even in circumstances were someone has a Gender Recognition Certificate (GRC). This means that, for the purposes of the Equality Act 2010, a trans woman (assigned male at birth) is considered a biological man, and a trans man (assigned female at birth) is considered a biological woman. While this decision provides much needed clarity on what has been a highly controversial debate, it nevertheless has created significant confusion not least because it goes against previous guidance and interpretation.
EHRC Interim Guidance
The EHRC has now published interim guidance in response to the Supreme Court’s decision which focuses on the practical implications for workplaces and service providers. For employers the following points are key:
Single Sex Facilities
Employers are required to provide sufficient single-sex toilets and, where necessary, single-sex changing and washing facilities. The guidance provides that trans women (biological men) should not be permitted to use women’s facilities, and trans men (biological women) should not be permitted to use men’s facilities. Allowing this would mean those spaces are no longer single-sex and would have to be open to all users of the opposite sex. Prior to this ruling, it was common practice in many workplaces to allow people to use the facilities that equated to their acquired gender rather than their biological sex.
Provision for Trans Employees
In some circumstances, the law also allows trans women (biological men) not to be permitted to use the men’s facilities and trans men (biological women) not to be permitted to use the women’s facilities. It is understood that this will be determined on a case by case basis and where facilities are provided for both men and women, employers must ensure that trans employees are not left without access to appropriate facilities although the guidance is largely silent on how employers can achieve this. Where possible mixed-sex i.e. gender neutral facilities should be provided in addition to single-sex options although for many this may not be practicable in terms of space and/or resources. Facilities designed for single occupancy (i.e. lockable rooms as opposed to lockable cubicles in otherwise accessible rooms) can be used by anyone, regardless of sex. It is important to be aware that while simply reassigning certain facilities as “gender neutral” might work from an Equality Act perspective this is likely to fall foul of health and safety legislation which requires mixed-sex toilets to be individual lockable rooms.
Review of Policies
Employers should review all workplace policies, especially those relating to facilities, privacy, family leave, and gender identity, to ensure they comply with the clarified legal definitions. This includes updating staff handbooks, induction materials and training.
Dignity and Non-Discrimination
Despite the clarified definitions, trans people remain protected from discrimination and harassment under the protected characteristic of gender reassignment. Employers must continue to treat all staff with dignity and respect, ensuring no one is subject to bullying or exclusion.
There is potential for employers, while complying with the Supreme Court’s decision to inadvertently fall on the wrong side of a gender reassignment discrimination claim. The fact that discrimination can arise out of an incorrect perception makes this even more difficult. The EHRC interim guidance does not provide any recommendations for how this can be avoided and it is hoped that the full guidance due to be published next month will provide more detailed and helpful advice on this particular issue.
Practical Steps for Employers
Audit Facilities
Check that your workplace provides enough single-sex toilets and changing rooms. Wherever possible, mixed-sex toilets, washing or changing facilities should also be provided in addition to sufficient single-sex facilities. If you have only mixed-sex facilities, consider whether this could amount to indirect sex discrimination against women as per the EHRC’s interim note although interestingly the guidance does not explain how employers can mitigate against potential for successful indirect gender reassignment discrimination claims in circumstances where the only available facilities are single sex.
Communicate Clearly
Inform staff about any changes to policies or facilities, emphasising continued commitment to inclusion and respect for all employees and reminding all of their obligations not to bullying, harass or discriminate. Employers should be aware that certain employees may be feeling particularly vulnerable and there is a heightened risk of conflict between certain groups. Any disputes should be handled sensitively and with a view to the employer’s duty of care to all.
Wherever possible engage with affected employees to understand their concerns and consider any practical suggestions and solutions they might have.
Prepare for Change
Keep an eye out for the EHRC’s updated Code of Practice, expected in June, and be ready to update your policies again as necessary.
Looking Ahead
This is a complex and sensitive area, and the law is still evolving. The EHRC’s interim guidance is just that – interim and it is hoped that the upcoming consultation and full guidance will bring further clarification as it has been widely criticised for being impractical and failing to recognise very real issues that face trans people in light of the Supreme Court’s ruling. For example, the guidance recognises that trans people should not be put in a position where there are no facilities available but provides no guidance as to how employers are expected to ensure that that is the case. It is only too easy to see a situation where a trans person had previously been using the facilities applicable to their gender identity with no issue and without the knowledge of their co-workers but is now required to use the facilities relevant to their biological sex. To comply with the law, an employer risks “outing” the employee which not only carries with it the serious risk of a successful gender reassignment discrimination claim but more importantly is humiliating and degrading for the trans employee.
We must watch this space for further clarity on how these competing concerns can be fairly managed by employers. In the meantime, employers must do their best to balance legal compliance with a workplace culture that values all.
Our advice is simple – stay informed, act with empathy, and ensure your policies are both lawful and fair. The law may set the minimum standard, but how you implement it will define your organisation’s reputation and the wellbeing of your staff. We at Osborne & Wise are on hand to help you with any specific enquiries you might have.