Excellent experience start to finish – always very responsive to any queries and the turnaround on the property I was buying was very quick, even in the busy time leading up to stamp duty deadline. Jenny was always very helpful and went above and beyond to close on a short timescale.
Legal Background:
The Equality Act 2010 protects those with protected characteristics from unlawful acts such as discrimination. Within the legislation, women are protected under the characteristic of ‘sex’ and transgender individuals are protected under the characteristic of ‘gender reassignment’ and are also able to claim direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender
The Gender Recognition Act 2004, provides that if the minimum requirements are met, a transgender adult could apply for a gender recognition certificate which legally changes their gender for ‘all purposes’.
The question arose however as to whether a transgender person who has a gender recognition certificate would become a ‘man’ or ‘woman’ for the purpose of the Equality Act and thus be able to rely on the protected characteristic of ‘sex’, or whether the definition of ‘sex’ under the Equality Act was limited to a person’s biological sex.
Case background:
For Women Scotland Ltd (‘FWS Ltd’), a voluntary organisation who campaign for women’s and children’s rights in Scotland, brought judicial review proceedings to challenge statutory guidance produced by Scottish Ministers, in relation to the definition of a ‘woman’ in respect of Gender Representation on Public Boards (Scotland) Act 2018.
The Act was created with an aim to increase the proportion of women on public boards, by requiring positive action to be taken to redress gender imbalances, and it included transgender women within the definition of a ‘woman’ under the Act. FWS Ltd challenged this definition and the accompanying guidance, arguing that it went beyond the legislative competence of the Scottish Parliament.
Although initially unsuccessful, following an appeal the Scottish Ministers produced revised guidance which stated that the definition of ‘woman’ was the same as that in the Equality Act 2010, ie ‘a female of any age’.
FWS Ltd brought further judicial review proceedings against the Scottish Ministers, arguing that the definition of ‘woman’ in the Equality Act should be taken as meaning biological women. This was rejected but was ultimately appealed all the way to the Supreme Court.
The Supreme Court judgment:
The Supreme Court unanimously allowed the appeal and came to the decision that the terms ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010 refer to biological sex.
Reasoning behind the decision:
The reasoning given included that when a person receives a gender recognition certificate, their assigned gender is referred to as being their ‘certified sex’. The Court held that interpreting ‘sex’ to include ‘certified sex’ in the Equality Act would lead to incoherence.
When providing their reasoning for the judgment an example was given in relation to sex discrimination and pregnancy and maternity provisions, which would become unworkable unless ‘man’ and ‘woman’ were given their biological meaning.
It was further stated that including ‘certified sex’ within the definition of ‘sex’ would cut across the definitions of ‘man’ and ‘woman’ and the protected characteristic of ‘sex’ in a way that would lead to confusion.
Furthermore, including ‘certified sex’ within the definition would result in transgender people who have a gender recognition certificate having greater rights than those who do not have one.
It was however emphasised in the judgment that this interpretation of ‘sex’ would not remove protection from transgender people, both with or without a gender recognition certificate. The protected characteristic of ‘gender reassignment’ protects trans people from discrimination and harassment on the grounds of their acquired gender and will be applied in the same way as it would be under discrimination on the grounds of sex.
Implications for Employers :
This judgment will have obvious and wide-ranging implications on a number of different areas within the workplace. However no guidance was given as to how employers should address these matters. The most publicised issue has been the provision of toilets and changing facilities.
Whilst a number of employers offer mixed sex toilets (subject to meeting requirements under the The Workplace (Health, Safety and Welfare) Regulations 1992 and Equality Act 2010) most employers have separate male and female toilets which they allow their transgender employees to use based on the gender that they identify as. Therefore, using the facilities opposite to their biological sex. Whilst this was seen as being inclusive and protective of transgender employees it now been categorised as unlawful.
This will cause a major issue and competing rights. Employers will need to ensure that the stress and anxiety that this may cause their transgender employees is minimised with the competing feelings of for example female employees who may feel uncomfortable sharing toilet and changing facilities with biological males.
Recommended actions:
Employers will therefore need to take steps to protect both groups. However, most employers are waiting for Guidance from the Equality and Human Rights Commission, which are expected to be issues later this summer, before definitively taking steps.
In the meantime, suggested steps that could be taken include:
- Employers should arrange to speak or meet with their transgender employees and make sure that they are supported specially in the light of this ruling;
- Transgender employees should also be given a contact point to call or e-mail if they have any concerns;
- A review of policies should be undertaken with changes being made where they are in breach of the latest legal position albeit many are waiting for further Guidance as set out above;
- Where possible provide a third facility/ provision which is gender neutral;
- Convert current facilities based on biological sex to gender neutral spaces in line with the The Workplace (Health, Safety and Welfare) Regulations 1992 and Equality Act 2010) requirements which include having self-contained rooms with floor-to-ceiling doors, a sink and a drying facility;
- Manage as best as possible the different and sometimes competing beliefs.
If you have any concerns or queries in relation to the impact or application of the judgment please contact Shiva Shadi, Head of the Employment Department, at 0161 832 3304.
