Earlier this month, the Supreme Court ruled that the legal definition of a woman, according to the Equality Act 2010, is based on biological sex.
The judgment in For Women Scotland (FWS) v Scottish Ministers caused equal amounts of celebration and consternation on both sides of the transgender rights debate. But in terms of how HR teams and managers deal with the practical issues, a number of questions remain.
This weekend the Equality and Human Rights Commission (EHRC) published an “interim update” on how employers, service providers and other associations and bodies should interpret the ruling.
A consultation will be launched next month that will seek views from affected stakeholders, and the EHRC aims to provide an updated code of practice to the government by the end of June. This will then need to be approved by ministers.
Despite the updated guidance, there continue to be questions around how the Supreme Court decision should now be interpreted on a practical basis, including:
What should we do until the EHRC code of practice is approved?
At the time of the original ruling, both the CIPD and conciliation body Acas urged employers to engage with employment lawyers to ensure compliance on individual practical matters such as occupational requirements and single-sex provisions.
Immediately following the ruling, their advice was to ensure language reflects the legal definition of sex, and that employers explain the impact of the ruling alongside their ongoing commitment to inclusion.
Supreme Court ruling
EHRC: Interim update on single-sex spaces draws criticism
Supreme Court: legal definition of woman based on biological sex
As the body enforcing and upholding equality laws in the UK, it is likely to be the full and approved statutory guidance from the EHRC that will inform any breaches in legislation, rather than the interim update.
Heather Mitchell, partner in the employment team at Browne Jacobson, points out that compliance with the Equality Act 2010 is still essential, and the scope to advance DEI initiatives is still broad.
“The Supreme Court took great care to point out that trans individuals are still protected from discrimination, and the position remains that employers and service providers need to carefully balance the needs of all individuals in accordance with equal opportunities legislation,” she says.
“In terms of timing, organisations might consider waiting for the forthcoming EHRC guidance this summer to ensure that any policy adjustments are fully informed and aligned with the latest recommendations.
“In our view, there is minimal risk of successful tribunal claims associated with continuing to foster inclusive practices and updating DEI efforts in the interim, albeit organisations might feel under pressure to review and confirm their positions.
“Employers can still adapt policies where necessary and pursue DEI goals that extend beyond legal requirements, focusing on creating environments where all employees feel supported and valued.
“Again, if employers are seeking to make reactionary changes in the interim, we would strongly advise taking legal advice to avoid any ‘over-correction’ in response to this judgment. In our view, the risks associated with ‘over-correction’ are likely higher than the risks associated with ‘under-correction’.”
Can a transgender employee still use their preferred facilities?
One of the key focuses of the debates surrounding sex-based policies at work has been the provision of toilets, and whether trans women can use female facilities, and trans men the male facilities.
In its update, the EHRC states: “In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.”
If somebody identifies as trans, they do not change sex for the purposes of the Equality Act 2010, even if they have a gender recognition certificate, it adds.
The EHRC update makes it clear that in workplaces, trans women (biological men) should not be permitted to use women’s facilities, and trans men (biological women) should not be permitted to use the men’s, as doing so would mean they are no longer single-sex facilities.
However, it says that “in some circumstances”, the law would allow trans women (biologically male) not to use the male facilities and trans men (biologically female) not to use the women’s.
“Where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use,” it advises. It also recommends that organisations provide mixed-sex toilet, washing and changing facilities in addition to single-sex facilities.
It adds: “Where toilets, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men.”
Akua Reindorf KC, an EHRC commissioner, argues that “neither the update nor the judgment forces trans people into opposite sex facilities if organisations operate in a way that takes into account the dignity and safety of everyone who is affected”.
She argues that there may be a “case-by-case” basis for excluding someone who passes as a man, for example, but is a biological woman, from women’s facilities.
But some experts see it as more clear-cut. Philip Pepper, employment partner at Shakespeare Martineau, says: “The recent Supreme Court decision means that where there are women-only spaces, these cannot be used by a biological man who identifies as a woman. That includes changing rooms, toilets, hospital wards and the like. Prior to this decision, the law around the use of facilities was complex and, in many cases, unclear,” he says.
‘Complex and nuanced’
Mitchell points out that while this might seem a straightforward clarification, the detail is in the small print. “The guidance goes on to say that where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use and where possible, mixed-sex toilets, washing or changing facilities in addition to sufficient single-sex facilities should be provided. Employers therefore have a decision to make about what is ‘possible’.” she says.
“Despite the apparent clarity in the ECHR guidance, the employer needs to be aware of the risk of a discrimination claim (if that group shares a protected characteristic). This involves a complex and nuanced balancing exercise.
“It is important to remember that trans individuals remain protected under the Equality Act (under the characteristic of gender reassignment) and must also have access to suitable facilities. Failure to provide any suitable facilities for trans employees could result in a discrimination claim if it can’t be justified.
“Employers may wish to consider creating gender-neutral (or unisex) facilities in addition to gender-specific facilities – or they may want to reassure staff that the judgment causes no need to change current practices.
“It is the responsibility of the employer to determine the best way to provide everyone with access to appropriate facilities, whilst treating everyone with dignity and respect. Employers must take care to balance the needs of everyone involved.”
She adds: “The protection against discrimination includes the protection against harassment. Employers need to ensure that their response to the Supreme Court judgment and subsequent ECHR guidance is applied in a considered way to their circumstances. A thoughtful approach will minimise the risk of legitimate claims that trans employees have been harassed in relation to the application of any policy.”
Sue Tumelty, founder of the HR Dept consultancy, reminds us that workplace health and safety regulations require employers to provide safe, secure facilities for women.
“However, workplaces can have unisex toilets, provided they are in a separate room, entirely enclosed with a lockable door and a wash basin, in other words, not cubicles with gaps above or below the door, and that there are hygiene facilities in each toilet.
“For larger companies, we may see a move towards employers choosing to provide female toilets, unisex toilets and male toilets.”
What about sex-based policies?
Although the CIPD and Acas advise employers to review their policies to reflect the decision, Mitchell advises against making sudden changes. “Whilst it is open to employers to update the term ‘sex’ to ‘biological sex’ (in the interest of clarity), we urge them to carefully consider the impact of such a change on the trans community. In our view, most policies are likely to remain fit for purpose, and we would caution against any knee-jerk reaction to the Supreme Court decision,” she says.
Mitchell advises that before employers make the change, they should first consider whether they have objective justification for this, and secondly, consider how they will ensure that trans individuals are not treated less favourably as a result.
“Such changes might cause confusion or discomfort among employees, particularly transgender individuals, and so it’s crucial to communicate these changes clearly and sensitively. In light of the media attention the FWS decision has attracted, a progressive employer may want to reassure staff by issuing a statement affirming the organisation’s commitment to inclusivity and respect for individual identity remains strong,” she adds.
Sex-based rights, such as equal pay and gender pay gap reporting, could also be impacted. When gender pay gap reporting rules were introduced in 2017, they required employers to report on differences in median hourly pay between “men” and “women” but these terms were not defined in any more detail. This meant employers could decide how to categorise transgender or non-binary staff.
Pepper from Shakespeare Martineau says the Supreme Court decision could potentially limit the scope of self-identified gender reporting. “This may mean that whilst it is still possible to collate information on perceived sex, employers will actually need to produce reports based on biological sex for legal purposes. This may be difficult and will require careful handling of data,” he says.
How will the ruling impact legal claims on this issue?
A tribunal hearing brought by nurse Sandie Peggie against her employer, NHS Fife, is due to resume in July after she was suspended for complaining that she had to share a changing room with Dr Beth Upton, a trans woman.
EHRC chair Kishwer Falkner wrote to NHS Fife last month reminding the trust that changing rooms should include separate facilities for men and women. In light of the Supreme Court ruling, one Scottish MSP has now urged the trust to concede defeat in the tribunal. Conservative MSP Murdo Fraser said the ruling means the board does not “have a leg to stand on”.
However, Scottish social justice secretary Shirley-Anne Somerville said it would not be appropriate to intervene and that this was “a matter between the employer, NHS Fife, and the employees” that was subject to ongoing judicial proceedings.
Another case that could be impacted by the Supreme Court decision is a claim by a group of Darlington-based nurses against their NHS Trust over the use of single-sex changing rooms.
The tribunal has been delayed until October, and the Trust has said the ruling will be “carefully considered” in reviewing their policies. Andrea Williams, chief executive of the Christian Legal Centre, which is representing the nurses, said that “the NHS, following the Supreme Court ruling, must now recognise sex where it matters most: in ensuring privacy, dignity, and safety”.
What about gender recognition certificates?
The latest EHRC update explains that if somebody identifies as trans, they do not change sex for the purposes of the Equality Act 2010, even if they have a gender recognition certificate (GRC).
Responding to the Supreme Court ruling last week, Simon Blake, chief executive of LGBTQ+ charity Stonewall noted that there are roughly 15,500 individuals in the UK with a GRC, and “tens of thousands more who do not”.
“Trans people are our families, friends, neighbours, and colleagues; we share our workplaces, our communities, our pubs, cafes and places of worship with them. They are worried and frightened by the legal implications of the ruling, and its unknown consequences,” he said.
Tumelty from the HR Dept would like to see “well thought-out guidance” from employers on how to support people with GRCs “to ensure that those people do not feel betrayed and excluded because of this ruling”.
She adds that there are further policy areas that may require greater clarity, such as maternity leave.
“For example, in a scenario where a trans man who is biologically female became pregnant, if they are seen in the eyes of an employer as male then they wouldn’t receive maternity pay, but if they are still legally recognised as a biological female, they would still receive maternity pay.
“Because the debate around this ruling, but also rights more generally, has become so toxic, some small employers are likely feeling frightened, which is doing more harm than good to tolerance in some cases.
“For example, employers may feel worried about employing someone who is trans and then getting their pronouns wrong accidentally and causing offence and distress and therefore would feel frightened about employing them – which is the exact opposite of what we want.
“HR professionals will play a key role in helping businesses to foster an inclusive and tolerant environment, where employers can be helped to improve, and employees feel safe and supported.”
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