What does the ruling of the Supreme Court on biological sex mean in practice?

What does the ruling of the Supreme Court on biological sex mean in practice?

Starting Point – the Gender Recognition Act 2004

The Gender Recognition Act 2004 provides a mechanism for someone to be legally recognised in, and gain the rights and responsibilities of, their gender affirmed through gender reassignment (ie from a man to woman, or woman to man), and by obtaining a Gender Recognition Certificate.

Under the Gender Recognition Act, where a full Gender Recognition Certificate is issued to a person, the person’s gender becomes ‘for all purposes’ the acquired gender, ie:

• if the acquired gender is the male gender, the person's sex becomes that of a man, and
• if the acquired gender is the female gender, the person's sex becomes that of a woman

Protection under the Equality Act 2010

The Equality Act 2010 provides protection against discrimination and other prohibited conduct which relates to a protected characteristic. For people who are trans or identify as having gender identity that is different to their sex at birth, the two protected characteristics most likely to be relevant are sex and gender reassignment.

For Women Scotland v Scottish Ministers

The Supreme Court case was brought by a group called For Women Scotland. It wanted to overturn Scottish legislation which said 50% of members on public boards should be women – and trans women were included in their definition. The case therefore centred around the use and meaning of the word ‘sex’ and the protection surrounding it under the Equality Act 2010, and the group argued that this should be based on biological sex and not an individual’s acquired or chosen sex.

The group lost its case in Scotland’s highest court, but appealed to the UK Supreme Court.

The Supreme Court ruled that in the Equality Act 2010, ‘sex’ means biological sex.

This means that, under the Act:

• A ‘woman’ is a biological woman or girl (a person born female)
• A ‘man’ is a biological man or boy (a person born male) 

If somebody identifies as trans, they do not change sex for the purposes of the Equality Act, even if they have a Gender Recognition Certificate.

• A trans woman is a biological man
• A trans man is a biological woman

This judgment has implications for many organisations, including:

• workplaces
• services that are open to the public, such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services
• sporting bodies
• schools
• associations (groups or clubs of more than 25 people which have rules of membership)

Communication by the Equality and Human Rights Commission (EHRC)

Following the judgement of the Supreme Court the EHRC has produced interim guidance, whilst a full updated guidance is awaited. The EHRC therefore states;

In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.

In workplaces and services that are open to the public:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities;
• 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 woman) not to be permitted to use the women’s facilities;
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use;
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided;
• where toilet, washing or changing 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.

Schools in England and Wales must provide separate single-sex toilets for boys and girls over the age of 8. It is also compulsory for them to provide single-sex changing facilities for boys and girls over the age of 11.

Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required. 

Membership of an association of 25 or more people can be limited to men only or women only and can be limited to people who each have two protected characteristics. It can be, for example, for gay men only or lesbian women only. A women-only or lesbian-only association should not admit trans women (biological men), and a men-only or gay men-only association should not admit trans men (biological women).

Responding to the judgment, Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, said:

“This judgment from the Supreme Court has significant implications for the interpretation of Britain’s equality laws. We welcome the clarity this ruling brings; its importance to those whose rights are affected under the Equality Act cannot be overstated.

Next Steps

The EHRC has confirmed it is working at pace to incorporate the implications of the Supreme Court’s judgment, and it aims to provide the updated Code of Practice to the UK Government by the end of June for ministerial approval.

In the meantime, the EHRC confirms it will continue to regulate and enforce the Equality Act 2010, ensuring protection for all protected characteristics including those of sex, gender reassignment and sexual orientation.

HR Connect will of course continue to keep our clients up to date with any further changes as they arise.