In the case of ‘For Women Scotland v The Scottish Ministers’, the UK Supreme Court ruled that in the Equality Act 2010 (the Act) ‘sex’ means biological sex. Please click here to see our article on this.
The decision has received widespread attention and raised a significant number of practical questions. In an attempt to provide some clarity, the Equality and Human Rights Commission (EHRC) has issued a short interim update on how employers should interpret the ruling.
The guidance states that the effect of the ruling is that, under the Act a ‘woman’ is a biological woman (person born female) and a ‘man’ is a biological man (a person born male). If someone identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate. This means a trans woman is a biological man and a trans man is a biological woman.
The EHRC reminds employers that 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. Its key message is that trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities.
It also states that in some circumstances, the law would allow trans women (biological men) not to use the men’s facilities and trans men (biological woman) not to use the women’s facilities. Further, 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 recommends that employers consider the provision of mixed-sex toilets, washing and changing facilities in addition to single-sex facilities and explains that 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.
The EHRC is now working to update its Code of Practice, with the aim of having this ready for ministerial approval by the end of June 2025. We meanwhile await further guidance as to the practical implications of this judgement.
If you need any advice or assistance with this complex area of law, please contact us on 0345 646 0406 or complete an online enquiry form, and a member of the team will be in touch.