Introduction

The recent Supreme Court decision in For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) has attracted significant public and media interest. This article aims to cut through the noise by setting out the background to the case, explaining the Supreme Court’s ruling, and consider the implications for employers.

Background to the case

The case was brought by campaigners, For Women Scotland, against the Scottish Government in relation to the Gender Representation on Public Boards (Scotland) Act 2018 and the accompanying statutory guidance. The legislation aimed to promote gender equality on public sector boards but concerns were raised over the definition of “woman” in the guidance. This guidance stated that ‘woman’ included biological women and those proposing to undergo, are undergoing or have undergone gender reassignment.  

The Scottish Parliament argued that the definition in the statutory guidance aligned with the definition in the Equality Act 2010 (EqA 2010) as under this a transgender woman with a Gender Recognition Certificate (GRC) fell within the definition of ‘woman’. Women Scotland brought a case against the Scottish Parliament, arguing that this interpretation was unlawful. The case was appealed to the Supreme Court their judgment was issued earlier this month.

The Supreme Court’s decision

The Supreme Court ultimately determined that ‘woman’, ‘man’ and ‘sex’ under the EqA 2010 referred to biological sex but before looking at their reasoning, there are some important points to establish:-

• The judgment concerns the definition of ‘woman’, ‘man’ and ‘sex’ specifically within the context of the EqA 2010 i.e., within the framework of equality law, not more broadly;

• Both transwomen and transmen remain protected from discrimination under the EqA 2010 if they have proposed, started or completed gender reassignment as gender reassignment is a protected characteristic (this includes a transperson both with and without a GRC); and

• The role of the Supreme Court is to interpret the law as enacted by Parliament. It is for Parliament’s role, not the role of the courts, to change or introduce new legislation.

One area that the Supreme Court examined was Parliament’s intention when drafting the original legislation which established sex discrimination protection under UK law, i.e., the Sex Discrimination Act 1975 (SDA 1975). It concluded that when Parliament drafted this legislation, they intended that ‘woman’ and ‘man’ referred to biological sex. The Supreme Court then assessed whether subsequent legislation altered the meaning of these terms and determined that it did not.

The Supreme Court also analysed the implications of different interpretations of ‘woman’ in the EqA 2010 and considered guidance from the Equality and Human Rights Commission (EHRC). EHRC submitted that including transwomen within the definition of ‘woman’ could create challenges for the rights of women, as well as those of lesbian, gay and bisexual people. The Supreme Court noted that there were parts of the EqA 2010 which could only be interpreted as relating to biological sex, for example that pregnancy and maternity could only relate to a person who was biologically female.

The above provides a snapshot of the reasoning behind the decision and highlights the approach the Supreme Court took in interpreting the relevant terms under the EqA 2010. In light of this decision, it is now important to understand what this means for employers and employees.

Implications for employers

• Pregnancy and maternity – transmen can be discriminated against on the grounds of pregnancy, maternity and for associated leave.

• Single-sex facilities in the workplace – the provision of single-sex facilities in workplaces is already a requirement under The Workplace (Health, Safety and Welfare) Regulations 1992. However, it is not compulsory for services that are open to the public to provide single-sex facilities. Where services to the public are single-sex it must be justifiable as a proportionate means of achieving a legitimate aim (alongside other requirements under the EqA 2010). This judgment means that single-sex services can be restricted to biological sex, even where an individual has a GRC. However, this restriction must still be justifiable as a proportionate means of achieving a legitimate aim, as before. The EHRC advises that, where possible, workplaces and services which are open to the public should offer mixed-sex facilities to ensure that trans people are not left without access to any facilities. It is important for employers to remember that failure to provide trans employees with facilities could result in discrimination claims and that these claims may be successful if the employer is unable justify their decision as a proportionate means of achieving a legitimate aim.

• Equal pay and gender pay gap reporting – both are governed by EqA 2010 which suggests that they should be based on biological sex, however it again appears that this is not entirely clear. For example, previous government guidance on gender pay gap reporting advises employers ‘to be sensitive to how an employee identifies their gender’ and to use information employees have provided to the company already.

• Differing opinions – tensions can arise in the workplace, particularly where individuals express strongly held views, including on social media or professional platforms such as LinkedIn. It’s important that employers foster a culture of respect, where different perspectives can be managed appropriately and sensitively.

Next steps

Employers should take this time to carefully review their policies to ensure that they are compliant and protecting the rights of all their employees. Whilst the EHRC has published an interim update on the implications of the judgment, it is advisable to keep an eye out for their forthcoming guidance as it is expected to provide greater clarity. Finally, given the level of attention this case has received it’s likely that further developments will follow, so staying informed will be important.

How we can help

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.