Given the deep significance of the Equality Act for workplace practice and diversity, equality and inclusion (DEI) approaches, the Supreme Court ruling in April has widespread ramifications for employers. The ruling makes a clear distinction between ‘biological sex’, the sex assigned at birth, and ‘certified sex’, a person’s sex that is legally recognised by a gender recognition certificate. The judgement passed unanimously by the country’s highest court asserts that under the Equality Act 2010, the terms ‘woman’, ‘man’ and ‘sex’ must be interpreted with reference to biological sex only and not based on certified sex.
The first step for employers is to review their HR and DEI policies and programmes considering this definitional clarification. It is crucial there is no conflation between the way characteristics of sex and gender reassignment are interpreted or used.
Secondly, the provision of single sex services, spaces, or associations will need to be closely regulated. For example, trans women may not be permitted to use women-only spaces, such as single sex toilets, changing rooms and hospital wards. Likewise for trans men in men-only spaces or services. Suitable provision for trans people must consequently be made.
Employers must also be alert to how the ruling affects their staff, especially women and trans people, or their allies. As Lord Hodge stated, this must not be seen as a victory for any one side. Any potential acrimony or unhelpful debate must be addressed by fostering a climate of constructive dialogue and mutual respect. Transgender rights continue to be protected under the characteristic of gender reassignment. Employers can work towards building an inclusive workplace for all groups by proactively engaging and supporting staff to understand the judgement’s implications.
Finally, the Equality and Human Rights Commission will soon hold public consultations as it works to update its Code of Practice. This is an opportunity for all employers and employees to share their concerns and suggestions on how the ruling would shape their everyday experiences.
Dr Meenakshi Krishnan is principal research fellow at the Institute for Employment Studies
