The judges were asked to interpret the terms “sex” and “woman”, and unanimously concluded that the terms in the Equality Act 2010 are determined by biology and refer to biological women and biological sex.
It was also ruled that legal protections under the Act cannot be afforded to individuals who were not born as biological females by changing their gender with a Gender Recognition Certificate. This means that if a space or service is designated as “women only”, a person who was born male but identifies as a woman does not have the right to use that space or service.
The Equality and Human Rights Commission says that this ruling will have significant implications for the interpretation of Britain’s equality laws, and they are urgently updating their guidance. We hope that this will reduce the number of tribunal claims that have arisen.
After years of uncertainty, the clarity from the judgement will be welcomed by many businesses who provide single sex services such as refuges, hospitals and sport and facilities such as changing rooms and toilets.
Health and Safety Executive (HSE) rules on toilet and washing facilities
It is worth referring to the HSE rules regarding toilet and washing facilities, as this may be a concern for companies at the moment wondering how to manage their staff.
The HSE rules that employers need to provide a minimum number of readily accessible toilets and wash basins depending on how many members of staff they employ. Ideally, separate facilities for men and women; but if that is not possible unisex toilets are acceptable where each toilet is in a separate room lockable from the inside, with a handbasin. Any toilet used by females must have hygiene facilities.
Continued protection for transgender individuals
Lord Hodge also stressed that The Equality Act 2010 continues to provide transgender individuals with protection against discrimination through the protected characteristic of gender reassignment. This includes protection against direct discrimination, indirect discrimination, and harassment in their acquired gender.
This ruling does not affect a person’s right to identify as a different sex and use different pronouns and their wishes should be respected. Employers should continue to support transgender employees and ensure that all employees understand that bullying and harassment will not be tolerated.
Ahead of the EHRC promised guidance, companies should review their policies and processes to ensure compliance and inclusivity, and where necessary provide managers with the appropriate training.
This has been a contentious subject, and such a sensitive topic needs to be handled sensitively to achieve a harmonious workplace.
