黑洞社区

The Supreme Court decision last month in For Women Scotland Ltd vs The Scottish Ministers has important implications for all employers, as well as for the building industry and estates management specifically. 

The ruling confirms that in the Equality Act 2010 the words 鈥渟ex鈥�, 鈥渨oman鈥� and 鈥渕an鈥� refer to biological sex. While the Gender Recognition Act 2004 (GRA) allows a trans person to secure a gender recognition certificate (GRC) which recognises their 鈥渁cquired gender鈥�, this does not change their sex under the Equality Act.

The decision

The Supreme Court held that legally sex means biological sex. The question it had to consider was whether this changed if a person has a GRC: it ruled this makes no difference. The court emphasised that trans people still enjoy protection from discrimination due to their protected characteristic of gender reassignment.

What this means for employers and service providers

Single-sex services

Where single- or separate-sex services are appropriate, service providers should ensure users know that access is based on biological sex. Removal of or failure to provide appropriate single- or separate-sex services may risk claims for breach of the Equality Act.

Workplace toilets and changing facilities

The Workplace (Health, Safety and Welfare) Regulations 1992 (the Workplace Regulations) require separate-sex toilet and changing facilities, unless the toilet is an individual lockable unit/room, with floor-to-ceiling walls and door (that is: not cubicles).

Failure to provide appropriate single- or separate-sex services may risk claims for breach of the Equality Act

The Supreme Court did not expressly consider the Workplace Regulations but it ruled that female services would not be single-sex if trans women are allowed to use them. Consequently, employers should not allow trans people to use toilets designated for the opposite sex, and risk claims for breach of the Equality Act if they do so. There is already legal precedent from East Shilton Council vs Miller [2023] EAT where lack of adequate female toilets amounted to direct sex discrimination, and the EHRC recently warned an NHS trust that it has obligations to female employees under both the Equality Act and the Workplace Regulations.

Modern workplaces may already have compliant unisex facilities, with single lockable units. Since October 2024, schedule 1 of the 黑洞社区 Regulations has included express requirements on single-sex and 鈥渦niversal鈥� unisex toilets. Unisex toilets may not be appropriate for all settings, however. They take up more space, and in buildings serving large numbers, traditional single-sex toilets, with a lesser number of clearly labelled unisex facilities, may be more efficient. There may also be potential health and safety concerns with unisex toilets, due to the risks that an employee could collapse and not be found.

In buildings with cubicles rather than individual unisex units, an employer will need to consider if it can designate facilities for a trans employee to use while retaining sufficient single-sex facilities to meet the minimum numbers recommended by the Health & Safety Executive. Where there are challenges and no obvious solution, we recommend taking specific legal advice. Many organisations will need to update their policies to be clear that a trans employee is not permitted to use facilities designated solely for the opposite sex.

Data collection

Biological sex should be recorded for diversity data and for gender pay gap reporting, rather than assigned gender. Employers should avoid conflating protected characteristics; sex and gender reassignment should be recorded separately (regardless of any GRC). Best practice might be to ask two questions: biological sex and an optional additional question as to whether the employee identifies with a sex other than their biological one.

Separate data on sex and gender reassignment will also enable employers to assess underrepresentation in the workplace and at leadership levels, and develop positive initiatives to address this. For positive action to be lawful, it will be necessary to demonstrate specific disadvantage or lack of representation based on reliable data which does not conflate different characteristics.

Trans people still have protection from discrimination.

The court was clear that trans people remain fully protected under the Equality Act. Employees and service users who suffer discrimination or harassment on the basis of gender reassignment remain protected, regardless of whether they possess a GRC.

In addition, someone perceived to be of the opposite sex can still complain of sex discrimination based on perception. Under the Equality Act individuals can claim associative indirect discrimination where the complainant suffers the same disadvantage as the protected class.

Monica Kurnatowska is a partner at Baker Mckenzie and Rebecca Bull is a solicitor and trustee at Sex Matters