LAW
What meaning of the word‘ sex’ ruling means for employers and HR policies
DEFINING MOMENT
Joanne McHale-Young, employment senior associate at Square One Law, examines how the Supreme Court’ s recent decision impacts workplace practices and legal compliance...
Compliance – Joanne McHale-Young says a recent court decision has implications for the shaping of equality, diversity and inclusion( EDI) policies.
What was the‘ For Women Scotland v The Scottish Ministers’ case? April’ s Supreme Court decision in For Women Scotland v The Scottish Ministers marked a major development in the ongoing debate over the legal meaning of“ sex”.
While the initial case related to public board appointments, the implications for businesses across the UK are significant, particularly when it comes to HR policies, diversity initiatives and ensuring compliance with equality legislation.
At the centre of the case was the question of whether“ woman” under the Equality Act 2010( EA 2010) includes trans women with a gender recognition certificate( GRC)?
The Scottish Government had previously taken the view that it did, notably within its Gender Representation on Public Boards( Scotland) Act 2018.
However, For Women Scotland challenged this interpretation, arguing it unlawfully redefined“ woman” beyond biological sex.
On April 16, the Supreme Court ruled that for the purposes of the EA 2010,“ sex” refers to biological sex, not gender identity or legal sex under a GRC. The court emphasised that interpreting sex otherwise would make key provisions of the EA 2010“ incoherent and impracticable.”
While reiterating that trans individuals are protected from discrimination under the characteristic of gender reassignment, the court found that statutory guidance from the Scottish ministers was legally incorrect.
What does the ruling mean for businesses? This decision had immediate and practical implications for businesses, particularly in how equality, diversity and inclusion( EDI) policies are shaped.
Employers are now required to understand that legal protections around“ sex” under the EA 2010 apply based on biological sex, not acquired gender.
Businesses offering single-sex services, such as gyms, healthcare facilities or educational organisations, must also carefully reassess policies to ensure compliance.
Businesses that respond thoughtfully, by updating policies, providing training and supporting all employees, will not only stay compliant but also demonstrate leadership in navigating this sensitive and evolving area with professionalism and care.
For example, where services are advertised for“ women only”, organisations must interpret“ women” to mean biological females unless they are relying on protections related to gender reassignment separately.
Policies regarding toilets, changing rooms, single-sex events or recruitment practices designed to promote gender balance( such as female-only leadership schemes) must also be revisited.
What steps should I take? Review your policies to ensure they reflect the distinction between biological sex and gender identity, such as updating language in policies, training materials and employee handbooks.
Investing in gender neutral facilities, where possible, could prevent members of the trans community feeling ostracised.
Identify any products or services that are single sex and review how they are described and sold.
Ensure HR professionals remain informed, act with empathy and avoid making assumptions when navigating the uncertainty.
Update staff on what the ruling means and the measures you’ ll be putting in place to ensure your workplace remains inclusive to all.
What support is available? Businesses that respond thoughtfully, by updating policies, providing training and supporting all employees, will not only stay compliant but also demonstrate leadership in navigating this sensitive and evolving area with professionalism and care.
Should you wish to speak to someone or tap into support to ensure you’ re doing everything within your power to comply with the ruling, speak to the employment law team at Square One Law.
We understand that dealing with such complex issues can be overwhelming, so our employment lawyers will work with you to identify clear, practical solutions that transform such legal challenges into opportunities for your business.
Visit squareonelaw. com or email joanne. mchale-young @ squareonelaw. com
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