Our latest podcast by Rebecca Cairney and Ian Pace will be looking at the recent Supreme Court decision, which has had a lot of press attention and is likely to have quite a big impact on employers, and that is the For Women Scotland V the Scottish ministers case.
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Transcript
Ian: Hi, everybody. Welcome to the next edition of our Employment Insights podcast. My name is Ian Pace. I'm a Partner in the Employment team based in Manchester.
Ian: I'm joined today by my colleague, Rebecca Cairney, who's a Partner in our Liverpool office. Hi there, Rebecca.
Rebecca: Hi, Ian. Thanks for having me.
Ian: Today, we're going to report on the recent Supreme Court decision, which has had a lot of press attention and is likely to have quite a big impact on employers, and that is the For Women Scotland V the Scottish ministers case.
Ian: This case looks at the definition of sex in the Equality Act. As I've said, in recent may weeks, it's been at the centre of press and media attention, surrounding the definitions of a man and a woman under the Equality Act, and that includes specifically individuals who've transitioned under the Gender Recognition Act of 2004.
Ian: So, I suppose a good start in place is to look at the background facts of the case, Rebecca.
Rebecca: Yeah. Absolutely. So, this was a case brought by a women's rights campaign group against the Scottish government.
Rebecca: It challenged the guidance that when reporting numbers of men and women on the boards of Scottish companies for a gender diversity initiative, that companies should count transgender people in line with their acquired gender.
Rebecca: So, guidance by the Scottish government outlined that the legal definition of a woman or women is the same as that set out under the equality act.
Rebecca: But the guidance continued to say that trans women, those assigned male at birth who have later transitioned to be female, who possess a gender recognition certificate should also be included under this definition.
Rebecca: The Women's rights organisation, so for women's Scotland, disagreed with this inclusion, and they argued that the definition of woman under the equality act should refer to the biological sex of an individual at birth rather than the acquired gender of a trans individual.
Rebecca: So, as well as these, two key parties, there were also some, high profile intervenors who were allowed to participate or make representations, you know, in the public interest.
Rebecca: And so, the court permitted four additional parties to provide written submissions, that included lesbian rights groups, the equality and human rights commission and Amnesty International.
Ian: Okay. So, you mentioned the gender recognition act and the and gender recognition certificates. Could you just provide a bit more detail in relation to that?
Rebecca: Yeah. Of course. So, the gender recognition act 2004 allows for an adult who is living in a gender separate from the one biologically assigned to them at birth, the opportunity to apply for a gender recognition certificate.
Rebecca: So the application is assessed by a gender recognition panel, and medical evidence must be provided by the applicant.
Rebecca: So once one of these gender recognition certificates have been issued, the gender recognition act states that the person's gender becomes for all purposes the acquired gender.
Rebecca: And it then goes on to say that if the acquired gender is the male gender, then the person's sex becomes that of a man. And if it is the female gender, then the person's sex becomes that of a woman.
Rebecca: But section 9 3 of the gender recognition act also makes clear that this is subject to provision made by any other enactment, which is how we've, ended up in this position.
Ian: Okay. And you mentioned that, for women in Scotland, challenged that position. What did the, courts decide in this case?
Rebecca: So, the 5 supreme court judges decided unanimously that the Scottish government's interpretation was incorrect and that for the purposes of the Equality Act, transgender people are not treated as being of their acquired gender. So, man means biological man, and woman means biological woman or the sex that an individual was assigned at birth, and that this is the case whether an individual holds a gender recognition certificate or not.
Ian: Okay. So that's clear in terms of the court's decision, but how does that impact on employers? What are the likely implications to be?
Rebecca: Yeah. So, the decision of this case has potentially wide-reaching implications both within the workplace and also more broadly in everyday life.
Rebecca: Trans people who have gender recognition certificates will not be considered as being a member of their acquired gender when sex discrimination issues are assessed under the equality act.
Rebecca: The court came to this decision by stating that the biological interpretation of sex was needed to provide clarity, especially towards matters on changing rooms, accommodation, medical services, women's fair participation in sports, you know etc.
Rebecca: But the court did, however, wish to make clear that their decision does not mean that trans people are not offered protection under the Equality Act. So, they did stress that they are protected from discrimination on the grounds of gender reassignment, but also from things like direct discrimination and indirect discrimination due to their perceived or required gender and, of course, things like harassment, as well.
Ian: Of course. So, on a practical level, what sort of thing should employers be thinking about now? What does this actually mean for employers?
Rebecca: Yeah. So, the decision of the supreme court will mean that there are many practical implications for employers who now need to be aware of the needs to strike a balance between complying with the new guidance and avoiding discrimination against, trans employees or any other employees.
Rebecca: So, employers will have to ensure that all employees, whether transgender or not, can be comfortable at work, and it remains important that transgender employees don't feel uncomfortable or isolated from their colleagues.
Rebecca: It is going to require employers, carefully reviewing and possibly revising their equality policies to make sure that they comply with the supreme court's interpretation of a man and a woman. This may include updating training materials or employee handbooks, for example, and things like recruitment and promotion. Employers need to make sure that, for example, initiatives aimed at increasing female representation are based on biological sex in compliance with the Equality Act on this decision.
Rebecca: Employers will also have the challenging task of reviewing their policies relating to single spec sex spaces within the workplace.
Rebecca: So for example, men and women's toilets and all the changing facilities.
Rebecca; And I suppose it's worth mentioning here that following the supreme court's decision, the quality and human rights commission did issue a short interim update highlighting the main consequences of the judgment, particularly for employers.
Rebecca: It is really important to note that this is classified as an update only and not guidance and is not legally binding. But we are expecting, the guidance to land this summer, and that's going to require parliamentary approval.
Rebecca: So the clear message really is that, you know, for example, trans women should not be allowed to use the women's, single sex facilities and similarly trans men should not be permitted to use men's single sex facilities as that would mean that they are no longer single sex facilities.
Ian: Yeah. It's that point, since this decision. I'm sure you have as well that we we've had, a lot of interest and a lot of queries, specifically in relation to toilets. That's one of the main thing that we've we've received. What the position now regarding toilets and changing facilities?
Rebecca: Well, there's also, health and safety legislation, that requires separate sanitary facilities to be provided for men and women, except where those facilities consist of separate lock able rooms, in which case they can be gender neutral.
Rebecca: So since this decision, employers who currently allow transgender employees to use facility facilities, appropriate to their acquired gender will mean that those facilities can no longer be classed as single sex and also means that the health and safety requirements will not be met.
Rebecca: You know, non trans employees can also potentially raise sex discrimination claims.
Rebecca: So from a practical perspective, it's striking a balance between avoiding discrimination against trans people, but also complying with the supreme court's ruling.
Rebecca: And, for example, employers are likely to start offering gender neutral facilities if they zone already.
Rebecca: This, of course, will depend on the resource, the space available to employers.
Rebecca: And whilst this does mean that some clarity has been brought by the decision, there are going to be, I suppose, inconsistencies in how each employer approaches this in practice.
Rebecca: There's also some risks to employers in requiring trans employees to use biological sex toilets. So, for example, where colleagues may not know that the individual is trans, which can give rise to gender reassignment discrimination claims.
Rebecca: And, you know, matters such as these are going to be really have to be carefully thought through, any communications treated very sensitively on a case by case basis.
Rebecca: Employers should be providing clarity and guidance and support for employees on what facilities will be provided, how they should be used going forwards.
Rebecca: But it's absolutely crucial that employers remain conscious of their need to support trans employees within the workplace and to protect them from potential harassment and discrimination under the Equality Act.
Ian: You know, in light of the decision, there there's other practical considerations, so whether HR need extra training, on the implications of this decision, you know, the legal definitions of sex, the rights of transgender employees, and how to handle, any related workplace issues. And, of course, we would urge any employer listening to this podcast and considering these issues at the moment to seek some specific legal advice. You know, I know here at Weightmans, we have established a working party to deal specifically with these types of matters.
Rebecca: Yeah. Absolutely. And, yeah, I can only echo that. It's, it's obviously a really difficult, and tricky, position for employers to navigate. And, yeah, I can only echo that it would be so important to seek advice on a case by case, basis.
Ian: No. Thanks very much, Rebecca. That's been super helpful.
Ian: Do keep an ear out for other important employment law updates by subscribing to our podcast channel, Employment Law Insights. But for now, if you do need any assistance in relation to this matter or anything else employment law related, then do please contact me. My email address is ian.pace@weightmans.com or Rebecca, Rebecca.cairney@weightmans.com, and all details are on the website.
