Supreme Court judgment

The Supreme Court has held that the terms "man", "woman" and "sex" in the Equality Act 2010 refer to biological sex.  This means that, under the Equality Act 2010, a "woman" is a biological woman or girl which means someone who is born female and "man" is a biological man or boy and means someone who is born male.  

In its judgment, the Supreme Court noted that the definition of "sex" in the Equality Act 2010 makes clear the concept is binary.  Therefore, references to “man” and “woman” under the Equality Act 2010 cannot be interpreted as a reference to “certified sex”, i.e. individuals who have a Gender Recognition Certificate.  The result of this is that, for the purposes of the Equality Act 2010, a trans woman is a biological man and a trans man is a biological woman.

The Supreme Court made clear that this interpretation of the Equality Act 2010 does not remove protection from trans people, with or without a Gender Recognition Certificate.  Trans people are protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex. In the light of case law interpreting the relevant provisions, a trans woman can claim sex discrimination because she is perceived to be a woman and a certificated sex reading is not required to give this protection.

What does the EHRC interim guidance say?

In light of the Supreme Court's ruling the Equality and Human Rights Commission has published interim guidance for employers and service providers on the practical implications of the judgment pending further guidance to be available in due course and an updated Code of Practice expected to be published for government approval by the end of June 2025 following a public consultation which is to be launched in mid-May 2025.

The interim guidance provides that 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.  

The guidance confirms that in relation to both workplaces and services that are open to the public:

• Trans women (biological men) should not be permitted to use the women's facilities;
• Trans men (biological women) should not be permitted to use the men's facilities; and
• Where there is only single-sex provision, trans people should not be left without facilities to use, so where possible, mixed-sex toilet, washing and/or changing facilities should be provided (each in a separate lockable room) in addition to sufficient single-sex facilities.

The guidance points out that in certain circumstances the law also permits trans women (biological men) not to be permitted to use men’s facilities, and trans men (biological women) not to be permitted to use the women’s facilities. The Supreme Court cited an example of a trans man (biological woman) being excluded from women-only facilities where reasonable objection is taken to their presence based on their appearance or attributes.

What can employers do now?

While this judgment concerned whether trans women with a Gender Recognition Certificate should fall within the definition of "woman" for the purposes of the Equality Act 2010, it does have wider implications for all trans people.  

Employers may want to consider looking at their existing workplace facilities to ensure they comply with the judgment and auditing existing policies and procedures.  They should also consider how they want to respond to the judgment and handle any issues which may arise in the workplace.  Understandably, this is a sensitive issue and employers will want to handle employee relations issues carefully and respectfully and consider their employee communication strategy (if they feel they need one).  It is also advisable to record any considerations or decisions on how to respond to and manage the implications practically should any disputes arise. 

This is a complex issue for employers and service providers and we look forward to further guidance over the coming months.  If you would like to discuss any of the issues raised by the Supreme Court judgment, please reach out to our key contacts.