What employers should know about the Supreme Court’s Ruling on Sex in the Equality Act​ 

The Supreme Court’s recent decision in For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) which confirmed the protected characteristic of sex in the Equality Act 2010 is biologic sex, has the potential to bring sensitive challenges for employers and employees.

Katy Wedderburn, gunnercooke Employment Partner, outlines the key areas to be aware of from the Supreme Court ruling below.

• The Supreme Court ruled that “sex” in the Equality Act 2010 is biological, it is binary.
• It also held that it is not possible to self-identify as one sex or the other under the Equality Act. 
• The Equality Act 2010 (EqA) protects people who have a protected characteristic from discrimination, harassment, and victimisation. People with the protected characteristics of sex; and separately, gender reassignment are still protected. 
• The Equality and Human Rights Commission (EHRC) has recently issued an update https://www.equalityhumanrights.com/media-centre/interim-update-practical-implications-uk-supreme-court-judgment about the practical implications of the decision.
• The EHRC will incorporate the implications of the Supreme Court’s decision into its statutory Equality Code of Practice which, subject to ministerial approval, is expected to be laid before Parliament before the summer recess. 
• It is also urgently reviewing its single sex services guidance. 
• Employers should review their equal opportunities, inclusion and anti-discrimination policies and related training now, especially those giving precedence to self ID.
• Organisations providing single and or separate sex arrangements should review that now. Biology matters.
• They should assess the risk of claims for discrimination and harassment and find the steps needed to address them. 
• They should carefully think about how they deal with practicalities. They should treat employees consistently to avoid inadvertent discrimination by treating those who share a protected characteristic less favourably or to their disadvantage than they do others who have a different protected characteristic.
• Bodies subject to the public sector equality duties should more widely review their arrangements and how they comply. 

Not everyone is happy with this ruling, and it is a sensitive topic which has been divisive for many employees. This will mean a big change for some which will need understanding; empathy and possibly firm management if there is a risk of harassment to others. Employers should be conscious of their duties to employees. They should take care to avoid the risk of discrimination and harassment in the workplace, whether related to sex; or gender reassignment.

This is complex, and the implications are hard to get your head around. If you need expert legal advice, you can contact employment law expert Katy Wedderburn, who is working with several clients on the issues arising from this case and will be able to support you.

Katy holds accreditiations from the Law Society of Scotland in Employment law and Discrimination law.