The case revolves around the interpretation of the definitions of “woman”, “man”, and “sex” in the Equality Act 2010 (EqA 2010). The Supreme Court held that these definitions refer to biological sex, excluding trans women holding a gender recognition certificate (GRC) from the definition of “woman” under the EqA 2010 1. The court emphasised that the words “sex”, “woman”, and “man” in the EqA 2010 cannot be interpreted to include certified sex without rendering them incoherent and unworkable 2. This decision means that trans women with a GRC, who are biologically male but legally female under section 9(1) of the Gender Recognition Act 2004 (GRA 2004), are not entitled to be treated as women under the EqA 2010 2.
The court’s ruling has significant implications for various sectors, including employers, service providers, associations, and charities. It clarifies that the protected characteristic of sex in the EqA 2010 refers to biological sex, ensuring clarity and consistency in the practical operation of the Act 3. Trans people, whether or not they hold a GRC, continue to be protected under the protected characteristic of gender reassignment.
Implications for Employers
The decision provides some welcome clarity for employers on the meaning of “man”, “woman”, and “sex” in the EqA 2010. Employers will need to consider their policies and procedures carefully to ensure that they align with the judgment. In particular, those with single-sex policies in relation to changing rooms and toilet facilities will need to review their policies to ensure compliance. Other policies may also need to be reviewed, such as those relating to pregnancy, maternity and family leave, gender identity, and menopause.
Where an employer has a general occupational requirement for the person holding a role to be a particular sex, they will be able to lawfully exclude trans people with that acquired gender, even where they hold a GRC 6. Equally, where an employer takes positive action measures aimed at supporting those of a particular sex, they will be able to lawfully exclude trans people holding a GRC 7. Employers must continue to ensure that all staff, including any trans members, are treated with dignity and fairness and are protected from discrimination and harassment. They should be mindful of the potential impact the decision may have on trans staff and take proactive steps to reiterate their commitment to diversity, equity, and inclusion for all staff.
Judgment (PDF)
