The UK Supreme Court has confirmed that the term “sex” in the Equality Act 2010 refers to biological sex, not gender identity. In other words, even where somebody identifies as trans, they do not change sex for the purposes of the Equality Act even where they have a Gender Recognition Certificate (GRC).
This ruling, from the case For Women Scotland Ltd v The Scottish Ministers, has major implications for workplace policies, particularly those relating to single-sex spaces and services. In response, the Equality and Human Rights Commission (EHRC) has released some interim guidance affirming that where the law allows for single-sex spaces, these should be based on biological sex.
While many welcome the clarity this ruling provides, employers must not lose sight of a crucial point: transgender individuals–including transsexuals with or without a Gender Recognition Certificate–are still protected under the Equality Act (Eq Act).
Under the Eq Act, “gender reassignment” is a protected characteristic. This means anyone who is undergoing, has undergone, or is proposing to undergo a process of gender transition is protected from discrimination, harassment, and victimisation in the workplace. That protection stands regardless of the Supreme Court’s interpretation of “sex“.
So, while employers must now align certain policies with the biological definition of sex, they continue to have a legal and moral duty to treat transgender staff with dignity and fairness.
Here are five key steps employers should take now:
1. Review and amend relevant policies
Audit policies related to single-sex spaces, roles, or services. Ensure they align with the clarifies legal definition of sex while remaining consistent with your broader equality commitments.
Action: Consider inclusive options and document any reasons why possible options cannot be accommodated.
2. Offer inclusive alternatives where possible
The EHRC encourages practical solutions where single-sex spaces may exclude trans individuals. While the Supreme Court ruling defines single space facilities to be delineated by reference to biological sex, there remains a need to ensure the health and safety, dignity and privacy of all employees. So, providing some gender-neutral facilities (in the form of a room which is lockable from the inside) should be considered.
Action: Consider inclusive options and document any reasons why possible options cannot be accommodated.
3. Communicate changes sensitively
Policy updates should be rolled out transparently and respectfully. Help staff understand the legal context while affirming your commitment to a respectful workplace for all.
Action: Deliver briefings and written guidance that reinforce both compliance and inclusion.
4. Train managers and HR teams
Your leaders must understand how to implement the new definitions without breaching anti-discrimination protections.
Action: Train staff to apply the updated policies lawfully and with empathy, especially in sensitive situations.
5. Stay informed
The EHRC plans to issue further detailed guidance. Stay alert to updates and seek legal advice when needed to navigate grey areas.
Action: Set a calendar for regular legal and policy reviews, and sign up for alerts from our team.
Conclusion
The court’s ruling provides legal clarity on “sex,” but the Eq Act still robustly protects trans individuals from discrimination. Employers are therefore encouraged to ensure their leaders, managers and HR are fully versed on how to manage changes following the Supreme Court ruling to continue to support an inclusive workplace and minimise the risk of breaching the Eq Act.
