UK Supreme Court Decision on “Sex”

The recent UK Supreme Court ruling on the meaning of “sex”, “woman” and “man” is likely to have a number of implications for Irish employers with operations in the UK. Our Employment Law & Benefits team analyse the judgment and provide key takeaways for businesses.

What you need to know

• New definitions under UK law: The UK Supreme Court has ruled that the terms “sex”, “man” and “woman” are to be understood in a biological context.
• Single-sex facilities: The ruling provides for single-sex facilities like toilets and changing rooms in the workplace.
• Continued protection for trans individuals: Transgender individuals retain protection under UK equality legislation against discrimination, harassment and victimisation in the workplace.
• Preparation tips: Policy changes, staff training, and legal advice may be necessary for employers to ensure compliance with this new framework.

The UK Supreme Court has ruled that under equality legislation, the terms “sex”, “woman” and “man” mean biological sex, biological woman and biological man, respectively. It held that a gender recognition certificate (GRC) does not change a person’s sex. Therefore, the legal definition of a “woman” under law does not include a transgender woman who holds a GRC. Likewise, the legal definition of a “man” under law does not include a transgender man who holds a GRC.

The Equality and Human Rights Commission in the UK has confirmed that it will publish a revised Code of Practice in light of this judgment, this summer. As we wait for clarification, our Employment & Benefits team discuss some of the possible implications that the decision will have for Irish employers operating in the UK.

Single-sex spaces

The Supreme Court judgment, subject to any future clarification, means that single-sex spaces and services in the workplace, like changing rooms and toilets, can be lawfully restricted in the UK based on biological sex.

Recruitment

Given the Court’s interpretation of the words “woman” and “man”, the decision may have an impact on any positive or affirmative action measures or genuine occupational requirements used in recruitment. Prior to the ruling, a trans woman with a GRC could apply for “women-only” shortlists and other measures aimed at increasing female representation in the workplace. A trans man, however, would not be eligible for this type of role. The Supreme Court specifically considered this issue, when they gave the example of an employer requiring that a warden in a women’s hostel be female. Prior to the ruling, this position would be open to trans women but not trans men. The Court stated that “a biological definition of sex would correct this perceived anomaly”.

Continued protections for transgender individuals

The Supreme Court noted that “gender reassignment” is a different and separately protected characteristic under UK equality legislation than “sex”. This means that transgender individuals retain protection under UK equality legislation against discrimination, harassment and victimisation in the workplace.

Equal pay

The Supreme Court ruling affects equal pay complaints, which require complainants to use a comparator of the “opposite sex”. This means that a trans woman must now compare their treatment to a biological woman and not a man.

Key take aways for Irish employers operating in the UK

Policy changes

• Employers may need to review internal policies. This includes areas like workplace facilities, dignity & inclusion, and recruitment. The purpose is to ensure that the language used reflects the new legal definitions provided by the UK Supreme Court.

Training and communications

• Training will be required of staff in UK operations to ensure compliance with the new UK framework.
• Managers should be trained to handle sensitive conversations with staff.

Ongoing protections

• Trans individuals in a UK workplace will continue to be protected from discrimination, harassment and victimisation under the Equality Act 2010. Employers operating in the UK should address any of these complaints under their usual policy.

Stay informed

• Further clarification is required on how this decision will impact employers in practice. It is worth noting that the Equality and Human Rights Commission in the UK has confirmed that it will publish a revised Code of Practice in light of the Supreme Court decision this year. In the meantime, it is important that employers stay informed and seek legal advice as to their obligations under the law in the UK.

Conclusion

The UK judgment marks a significant development on the meaning of “sex”, “woman” and “man” under equality legislation. For Irish employers with operations in the UK, it is important to understand the implications that this judgment may have and tailor compliance strategies and training across jurisdictions.

Contact our Employment Law & Benefits team to find out more.

The content of this article is provided for information purposes only and does not constitute legal or other advice.