The Supreme Court rejected as incoherent an approach that would include “trans women” (biological men who identify as transgender) under the protected characteristic of being a woman, and “trans men” (biological women who identify as transgender) under the protected characteristic of being a man. Gender is assumed to be the sex the person is assigned at birth and often referred to as male and female, assigned according to a person’s genitals and primary sex characteristics and reproductive system, discovered at birth.
Acquired gender is the legal term referring to the gender in which a trans person is living. The Gender Recognition Act 2004 allowed a trans person to apply for a Gender Recognition Certificate (GRC), which recognised their preferred gender rather than their biological sex, allowing official documents like birth certificates to be changed to reflect that the persons sex had been legally changed.
Having the GRC means that a person can get married, enter into a civil partnership and acquire a death certificate of the new gender, so that generally, the new gender is recognised. The person does not need to have a GRC to update their employment records, to change gender at work. A transperson does not need to have a GRC to have protection under the Equality Act 2010. The Act protects employees at all stages of the employment relationship. This includes jobseekers, applications, employees and their terms and conditions.
The Supreme Court decision in which all five judges at the UK’s highest court unanimously ruled the legal definition of a woman under the Equality Act 2010 should be based on biological sex. They ruled that the definition of sex as used in the Equality Act 2010 is “binary” and decided by biology – a person who was not born as a biological female cannot obtain the legal protections the Act affords to women by changing their gender with a GRC. It also makes it clear that if a space or service is designated as women-only, a person who was born male but identifies as a woman does not have a right to use that space or service.
The decision will require Employers in the public and private sectors to consider the provisions they have made for single sex spaces and may require additional spaces such as changing rooms and toilet facilities to be increased to cater for trans people pursuant to the ruling, to avoid complaints and possible legal action being taken by non transpersons.
Previously Employers had to consider the provision of facilities such as toilets, washing and changing rooms, and whether a trans person can use them, so that they had their affirmed gender. Now there will be a need to use facilities appropriate to that gender. An employer may decide to have gender neutral toilets. The employer should not ask a trans person to use the disabled toilets.
If other members of staff object about the use of the toilets or changing facilities, the employer should ensure an open and effective discussion with staff dealt with in a sensitive way. If staff are in the process of transitioning, the employer needs to engage with them as an individual. To be sensitive and let the trans person know that they are going to receive support.
The Prime Minister Sir Kier Starmer said the judgment provided “clarity” that “a woman is an adult female”. For Employers their obligations to all staff remain which may include additional facilities and equality training for staff to ensure a positive working environment for all.
If you would like to discuss anything in this article, or are looking for legal assistance either as an employee or as an employer, please get in touch with our friendly and efficient Employment Law team on 01603 677077 or email info@spiresolicitors.co.uk.
