There has been much discussion and controversy surrounding the recent decision of the Supreme Court (“Court”) in the case of For Women Scotland v The Scottish Ministers. This short article will highlight the background to the case, it will continue with the key changes to the interpretation of the Equality Act 2010 (“EqA”) that has resulted from the decision and will conclude with some issues that this judgement will raise for employers.
The case was brought by the women’s rights campaign group For Women Scotland, as a challenge to the Scottish Government’s Gender Representation on Public Boards (Scotland) Act 2018. Particularly they challenged the policy contained in the Act that trans women with a Gender Recognition Certificate (“GRC”) should be included along with “biological women” as part of their target of 50/50 gender representation on the boards of public bodies. For Women Scotland argued that, under the EqA, sex based protections for women should only apply to those that were born female.
The Court undertook a detailed analysis of the statutory position, with particular reference to the provisions in the Gender Recognition Act 2004 (“GRA”) and the EqA. The Court’s approach was to engage in a statutory interpretation on the framing of “Sex” within the EqA. They confirmed that, for the purposes of the EqA, the terms “woman, “man” and “sex” refer to biological sex at birth. This ruling clarifies the legal position on how the legislation should be interpreted, and overturns previous guidance from the Equality and Human Rights Commission (“EHRC”).
The Court tried to assure, at great lengths, that they were not deciding on the validity of a person’s right to decide which gender they choose to live in. They explicitly stated that the GRA is still relevant in confirming the recognition and importance of rights afforded to transgender people. Particularly they focussed on the need to ensure personal autonomy and dignity. That being said, the judgement does confirm that, for the purposes of the EqA, it would not be discriminatory on the grounds of sex to exclude trans persons from single sex spaces of their assumed gender, provided that the decision to exclude is proportionate in the circumstances.
To come to this conclusion, the Court focussed on what they saw as the “incoherence and absurdity” of reading the EqA to include “certificated sex” rather than “biological sex” when interpreting the sex discrimination provisions. The judgement particularly focusses on the difficulty in interpreting a certified sex definition in the EqA, particularly in relation to pregnancy and maternity which can only affect biological women.
They continued that it would be “incoherent and unworkable” in a number of circumstances, with particular focus on provision of single-sex spaces and services. They argued that it would be difficult for service providers to be able to distinguish between trans persons who have a GRC and those that don’t. In their view it would be “inherently unfair” to include protection from discrimination for trans women with a GRC and non-trans women, but not for non-GRC holding trans women.
Importantly, the Court highlighted that trans persons continue to retain the right to protection from discrimination arising from Gender Reassignment. Specifically they state that the EqA “recognises sex and gender reassignment as distinct and separate for discrimination and inequality, giving separate protection for each”. These rights confer equal protection from discrimination, although the confirmation of the interpretation does change certain claims, including claims for equal pay. Trans people also retain protection from sex discrimination arising from perception e.g. if a trans woman was discriminated against because the person(s) perpetrating the discrimination perceived them to be a biological woman.
Following the judgement Lady Ross of the Court of Session Outer House has stated that she will issue a declarator confirming that there is a duty on councils to ensure that state schools must provide single-sex toilets. This stems from the a case brought against Borders Council by parents concerned that the new Earlston Primary School only had gender neutral facilities. There are distinct legal requirements on schools to provide single-sex toilets from the age of 8, and single-sex changing areas from the age of 11. This is likely to be the first of many cases in this area and is something which will need to be watched with particular care.
How then do employers act on this judgement? Former Justice of the Court Lord Sumption has suggested that the judgement does not require employers to exclude e.g. trans women from using women’s bathrooms or changing facilities. However, the EHRC has issued interim guidance which states that it is compulsory for employers to provide single-sex toilets, along with sufficient single-sex changing and washing facilities where needed. They state that, in workplaces, trans women should not be allowed to use women’s facilities and trans men should not be allowed to use men’s facilities. They also state that there may be some circumstances where trans women should not be allowed to use men’s facilities and trans men should not be allowed to use women’s facilities.
This guidance is due to be updated by the summer, but in the meantime there is real uncertainty for employers on how to deal with these issues. One solution is to provide only unisex facilities, but this would not accord with the ECHR’s interim’s guidance. Therefore, employers may be best to consider whether they can make available a third space – which can be used by anyone e.g. a unisex toilet alongside male and female toilets.. This too may be criticised on the basis that it could “out” individuals but it does nonetheless seem the most reasonable step to take in the interim – wherever possible.
For employers concerned about how to approach these issues, our Employment team is here to help, please contact a member of the employment team on 03330 430350.
