Part of our HR Law Newsletter
The press has been full of reports on the recent Supreme Court decision in For Women Scotland Ltd v Scottish Ministers. The landmark decision held that, for Equality Act 2010 (EqA 2010) purposes, the definition of "woman" refers to a biological woman and the definition of "sex" refers to biological sex.
The case originated from For Women Scotland's challenge to the inclusion of trans women with a Gender Recognition Certificate (GRC) in the definition of "women" under the Gender Representation on Public Boards (Scotland) Act 2018. Following years of litigation and associated public debate, the case ended up in the Supreme Court, which decided unanimously that "sex" in the EqA 2010 means biological sex only (and not the sex stated on a GRC). The Supreme Court was at pains to emphasise that trans people remain covered by separate protections against discrimination under the EqA on the grounds of gender reassignment and/or perceived sex. However, the decision does have wider ramifications for employers, who have previously made case by case decisions on sex and gender classification in relation to things like access to toilets and changing rooms.
Amidst ongoing discussions on the ruling, the EHRC published an interim update on 25 April. This states that it is compulsory to provide sufficient single-sex toilets as well as sufficient single-sex changing and washing facilities where these facilities are needed. It's worth noting that the update is non-statutory and further guidance will be forthcoming. We will be discussing the implications of the Supreme Court's decision for employers, as well as the EHRC interim update and how it might operate in practice at our Trowers Tuesday on 13 May so please join us then.
As stated above the EHRC is now working to update its full guidance to reflect the Supreme Court's judgment. In the meantime, employers should proactively review their existing policies and practices in light of the EHRC update. It's crucial to approach any changes with sensitivity, recognising that all employees deserve dignity and fairness. Additionally, be prepared to address any questions or concerns from staff and seek further advice if necessary.
We will be discussing the implications of the Supreme Court's decision for employers at our Trowers Tuesday on 13 May so please join us then. To receive the invitation for this session and more of the latest Employment law updates, do sign up for our Employment mailings here.
