As the dust settles: employment law, the Supreme Court, and sex under the Equality Act

We now know that the Supreme Court has said that “sex” is to be interpreted according to a biological definition.

Most of the discussion has focused on single-sex spaces like toilets. However, the ruling did not extinguish the legal risk associated with banning trans people from certain spaces or facilities. The ruling makes it less likely that a direct discrimination claim would succeed in some circumstances, but it does not preclude other discrimination claims. It remains the case that an exclusionary approach could constitute discrimination (most obviously indirect discrimination or harassment), such knee jerk reactions should be avoided and thorough consideration should be given to any decisions regarding single-sex spaces or offerings. It is also worth noting that protection from gender reassignment discrimination does not require a GRC so it is broad in scope.

On the other hand, if a trans person is not excluded from a single-sex space, it is a possibility that other employees would argue that this is discriminatory towards them based on sex and/or belief. The EHRC’s interim update states that in the workplace, trans women should not be permitted to use the women’s facilities and trans men should not be permitted to use the men’s facilities. In addition, in some circumstances trans women may be prohibited from using the men’s facilities and trans men prohibited from the women’s facilities. However, the interim update also states that trans people should not be in a position where there are no facilities for them to use and this is where mixed-sex facilities (in addition to single-sex facilities) should be provided. The main concern for employers is likely to be the space and potential expense involved in ensuring sufficient facilities can be provided. If trans people are unable to use facilities according to their gender, and potentially also that of their biological sex, there will need to be additional provisions which may involve discussion with landlords to discuss building facilities as well as carefully considering the needs of others (such as those with accessibility needs for whom their designated facilities are often utilised for such purposes). Alternatively, where toilets, changing or washing facilities are in lockable rooms (not cubicles) for use of one person at a time, they can be used by either men or women (which may help to minimise the risks above with single-sex facilities), but these are much less commonly found in workplaces and office spaces than single-sex facilities. It is also worth noting that this interim update is not the EHRC’s full guidance, so it is advisable to take specialist legal advice to consider your next steps.

In light of the above, until further detailed guidance specifically for employers is published, there remains risk and uncertainty with either approach. What we can say for now, is that the ability to objectively justify your approach could be incredibly important if indirect discrimination claims arise as a result (and it may be the case that objective justification forms a key ‘battleground’ in the litigation in this area going forward).

As mentioned above, this ruling was not an employment case and there will be particular issues arising in the employment context that complicate the situation for employers. For example, the question of toilet access/use is accompanied by even greater uncertainty because the extent to which the EA 2010 rules on single-sex services apply to the workplace is unclear. Those rules apply to “service providers” (i.e. those providing a service to the public or section of the public), but not necessarily employers. It may be the case that the toilets provided in your workplace are governed only by specific health and safety laws. These require single-sex toilets to be provided (as noted by the EHRC in its interim update)but the Supreme Court’s ruling last week did not directly rule on the definitions under this law. Of course, it may be the case that a court/tribunal would make such a determination but we will have to await the EHRC’s full guidance to ascertain its position on the legal obligations for employers specifically.

Whatever the decision of the Supreme Court, many employers would have had questions over the day-to-day practicalities of this ruling. From collecting data to the provision of services, either a biological or certified interpretation of sex raises practical questions of policing and enforcement which create privacy and wider discrimination risks.

The Supreme Court noted the practical difficulties with rules based on certified sex (i.e. ascertaining and proving such sensitive information). There are similar issues with biological sex where an employer won’t know or necessarily be able to ascertain or prove that information without creating legal risk. As above, this is where careful planning and a pragmatic approach will be valuable to minimising the risk that can accompany a knee jerk decision.

The attention that the Supreme Court judgment has attracted shows that many people are engaged with this topic and many have strongly held opinions on gender and sex. For large employers with a diverse workforce, it is highly likely that there will be staff with a range of views, experiences and opinions. Research shows that diversity of thought can be incredibly positive in a workforce, but it is more likely that there will be complaints and grievances among staff relating to opposing views on sex and gender. This is also a growing and complex area – you can read our article on belief discrimination following the Court of Appeal’s judgment in Higgs v Farmor’s School here. Put briefly, you may wish to consider revisiting relevant policies such as codes of conduct, reminding staff of your workplace values and culture and issuing revised guidance/training for staff to ensure expectations are clear across the workforce.