What is the legal definition of a ‘woman’?

The Supreme Court has decided that the terms “man” and “woman” in the Equality Act 2010 refer to biological sex, meaning that trans people with a gender recognition certificate will be treated in line with their biological sex for the purposes of the Equality Act 2010.

As a result, businesses must now:

• Reassess and update policies related to single-sex services, facilities, and employment practices to ensure compliance with this decision.​
• Ensure that recruitment, training, and workplace policies are aligned with this definition, particularly in areas like maternity leave, healthcare provisions, and gender-specific roles.​
• Ensure that any exclusion of individuals is objectively justified and does not constitute unlawful discrimination.​
• Review and, if necessary, modify service offerings to comply with the updated legal standards, especially in sectors like healthcare, education, and hospitality.​
• Document the rationale for any decisions to provide single-sex services to demonstrate compliance with equality laws.​

We can support you with all of the above; contact Natalie Hami Dindar.

The background

Whilst not an employment case, the Supreme Court has handed down its judgment in For Women Scotland v The Scottish Ministers. One question that arose was how the words ‘woman’ and ‘sex’, as referred to in the Equality Act 2010, should be correctly interpreted. Does it relate to a person’s biological sex, or their legal sex?

Under the Equality Act 2010 (EqA), it is unlawful to discriminate against someone based on their sex.

The Gender Recognition Act 2004 allows a trans person to change their legal sex through a gender recognition certificate (GRC).

The Supreme Court determined that for the purposes of the EqA a person’s legal sex is based on their biological sex at birth. In other words, a trans person holding a GRC cannot be included in the legal definition of “man” or “woman” based on what their GRC says. The court said that the EqA needs to be interpreted in a clear and consistent way so that groups of people who share a protected characteristic can be identified by employers and other organisations who have obligations under the EqA.

It is important to note that this decision “does not remove protection from trans people”. Trans people can still bring claims for discrimination on the grounds of gender reassignment, even if they have not yet obtained a GRC. This includes discrimination by perception (where a trans person is perceived to be their acquired gender, even if that perception is incorrect).

As an employer, what do I need to do?

This decision has wide and immediate implications on discrimination laws, and particularly for organisations involved in competitive sport or who provide spaces / services for single sex use, with the Minister for Women and Equalities stating today that trans women should use toilets according to their biological sex. Sex-based rights claims, such as equal pay claims, will also be affected.

For employers, especially those who provide gender specific services or operate single-sex spaces, a review of policies and training will be required to ensure that these are compliant in light of this judgment.

If you would like to discuss the implications of this case for your organisation, please contact Natalie Hami Dindar.