Employers should review the implications of the ruling, the EHRC’s interim update and, once in place, its updated Codes of Practice, particularly for their trans community. Careful consideration will be needed to balance the rights of employees with opposing views on this matter, recognising that developments have generated a lot of strong feelings on both sides of the argument.

The EHRC is consulting on proposals to update its Code of Practice for services, public functions and associations until 30 June, with a view to submitting an updated Code of Practice to the Government this summer.

It has yet to confirm the timeline for updating its Employment Code of Practice. However, the consultation gives employers some indication of the approach that might be taken, pending updated statutory guidance for workplaces.

Where we are now

The case For Women Scotland Ltd v the Scottish Ministers (case summary attached below) concerns the rights of trans women holding GRCs (i.e. biological males at birth certified as females) and whether they benefit from Equality Act protections afforded to “women”. The Supreme Court also clarified the scope of legal protections available for trans people, the majority of whom do not hold GRCs.

In its controversial interim update following the judgement, the EHRC stated that employers must provide single-sex toilets and facilities based on biological sex i.e. trans women should not be permitted to use women’s facilities, nor should trans men be permitted to use men’s. This was a radical change from its previous position and is subject to a judicial review challenge supported by the Good Law Project. Reports also suggest that the ruling will be appealed to the European Court of Human Rights. 

So how does this impact employers?

• Equality Act obligations refer to employees’ biological “sex” at birth

The Supreme Court has made clear that sex-based obligations and protections in the Equality Act must relate to an employee’s biological sex at birth. 

For example, as the gender pay gap regulations (made under the Equality Act) use the term “man” and “woman”, future reporting should reflect biological sex at birth. Employers should consult the statutory guidance on how to identify an employee’s gender for the purposes of gender pay gap reporting. However, this guidance may be reviewed following the Supreme Court ruling, or as part of the implementation of the Employment Rights Bill in due course.  

The EHRC’s draft Code updates the legal definition of sex to refer to sex recorded at birth and clarifies that a GRC does not change a person's legal sex for Equality Act purposes.

• Trans people are still protected from discrimination and harassment

As reflected in the EHRC’s draft Code, the ruling does not change protections for trans people against discrimination and harassment under the Equality Act, which apply regardless of whether they hold a GRC. “Gender reassignment” remains a protected characteristic for as long as someone is proposing to undergo, undergoing or has undergone a gender reassignment process. This means employers must continue to be careful about inadvertently “outing” trans employees and ensuring they are treated with respect in the workplace.

Trans people can also claim sex discrimination or harassment for unlawful treatment on the grounds of their own biological sex at birth, or for being perceived to be of a particular (biological) sex or associated with someone of that sex. For example, if a man sexually harasses a trans woman, not knowing she is a biological man, this still constitutes sexual harassment (as any person can be sexually harassed by someone of the same or opposing sex) and potentially sex discrimination, as this conduct constitutes detrimental treatment based on the perception of the trans woman being female.

Where a trans person brings an equal pay claim, the relevant comparator is a real (rather than hypothetical) person of the opposite sex. As such, for a trans woman, her comparator would be a biological woman, reducing the chances of a successful claim. However, she may have other avenues of legal recourse, including discrimination claims on the grounds of sex (for non-contractual matters e.g. non-payment of a discretionary bonus) or gender reassignment. 

• Need for a nuanced approach to single-sex facilities 

The EHRC’s interim guidance indicates that trans women should not be permitted to use women’s facilities, nor should trans men be permitted to use men’s.

Pending more definitive guidance, employers who take a hardline approach based on the interim guidance face a material risk of discrimination claims, not just from trans people who are excluded from their preferred facilities. This could also embolden employees with gender critical views (who are protected under the Equality Act due to their religious or philosophical beliefs) to be more vocal about, for example, whether trans women should have access to women-only facilities.

Employers need to carefully balance the rights of employees with opposing views. Complaints and concerns should be considered carefully and with respect to all viewpoints.

It is also critical that all employees, including trans people, have access to appropriate facilities - such as additional mixed-sex facilities or facilities in individual lockable rooms.

The EHRC's draft Code advises service providers on their approach to trans people's use of single-sex facilities. This relates to specific exemptions for service providers under the Equality Act which do not extend to employers or workplace facilities.

• Membership of single sex affinity groups to be carefully considered

Where workplaces have sex-based affinity groups, e.g. women’s networks, employers should consider whether it may be appropriate to limit membership to those sharing biological sex.

Where male allies are welcomed in women’s networks, changes will not be required. However, where membership is restricted to women, allowing trans women to join risks complaints from biological women that they are not being permitted a female-only platform where their rights are addressed. The EHRC’s draft Code gives an example of the exclusion of a trans woman from a women-only association being lawful.

As above, careful consideration to balance the rights of employees with opposing views is required and employers should consider the form and function of affinity groups in any decision that they make.

Next steps for employers?

• Engage with your trans community: This is clearly a difficult decision for the trans community. Consider how you can support trans employees’ wellbeing and foster inclusivity. Help to reassure them and address any concerns that they may have.
• Evaluate single-sex and mixed-sex facilities: Ensure appropriate facilities are accessible for all employees. Review what mixed-sex/ gender neutral facilities are available and consider whether existing facilities should be redesignated.
• Reconsider membership of sex-based affinity groups: Consider whether membership of sex-based affinity groups should be limited to those sharing biological sex at birth. Whether this is appropriate will likely depend on how affinity groups are utilised by the workforce.
• Update policies and training: Review your policies on workplace health and safety, equality, transitioning at work, as well as benefit plans, to check whether updates or clarifications are needed. Refresh anti-harassment and dignity at work training to address perceived or associated sex discrimination risks.
• Check how your pension scheme trustees/providers approach trans members: The ruling appears to have a limited direct impact on pension schemes, but pension rights for trans people is a complex area and schemes should be careful and sensitive about this issue (read more here).
• Review data gathering systems: Existing gender pay gap reporting guidance suggests how to collect this data sensitively (although this may be revised in light of the ruling and Employment Bill reforms). Process the data carefully and in compliance with GDPR. The EHRC’s draft Code gives guidance on asking for information about birth sex.

[For details on other developments on the law regarding sex and gender, see my blog on Gender Critical Beliefs.]