In a historic ruling, attracting widespread media attention, the highest court in the UK, the Supreme Court, have delivered a unanimous decision that the term “sex” in the Equality Act 2010 refers specifically to biological sex, which does not change for purposes of the Act even if an individual has a Gender Recognition Certificate. In the wake of this binary decision in For Women Scotland Ltd -v- The Scottish Ministers (2025) UKSC, employers are left wondering what this means for their business and how they can support their staff.
Following this decision, the Equality and Human Rights Commission (“EHRC”) have now issued a short, interim update highlighting the main consequences of the judgment and reminding employers and organisations of some key areas to address. However, some have questioned whether aspects of this guidance are correct.
The Equality Act 2010 (the “Act”) is the main law in the UK which protects individuals with specified “protected characteristics” from discrimination in the workplace. This protection extends beyond employees to include workers, contractors, self-employed, job applicants and former employees.
Broadly, discrimination means treating someone or groups unfairly, often “less favourably” because of who they are or a group they belong to. For legal protection, this must be based on a “protected characteristic” under the Act, which are:
Whilst in some cases of indirect discrimination, less favourable treatment can be objectively justified and therefore is not unlawful, discrimination is a key area which employers should familiarise themselves with to ensure they are aware of their responsibilities and are complying with their legal duties, or else they can expose themselves to a number of claims including direct and indirect discrimination, harassment and victimisation. Many employers also may not know that they can be held responsible for the conduct of their workers, which is known as “vicarious liability”.
A successful claim for discrimination against an Employer can be reputationally damaging and extremely costly, particularly because, unlike in other claims such as unfair dismissal, the compensation is more favourable toward the claimant and is uncapped. In some scenarios, there can also be an uplift on any compensation awarded of up to 25%.
As explained above, “sex” is a protected characteristic under the Act. The judgment, which is not a value judgment based on the judge’s personal views but one of a strict interpretation of the law, gives a unanimous and unambiguous ruling that, for the purposes of the Act, “sex” refers to biological sex.
The sports enthusiasts amongst you will have already seen the impact this has had on football, cricket and the female category of women’s netball. Inevitably, as the public digests this decision, there will be broader implications across other groups, public services, bodies, education facilities and organisations.
It provides a clear outcome that the words “sex”, “woman”, and “man” mean biological sex under the Act. However, it leaves many questions unanswered for employers regarding the practical treatment of trans women and men. The decision, which has been met with controversy from many groups, has unsurprisingly left employers wondering how to navigate the practical implications of the ruling. Following consultation, the EHRC aims to provide an updated Code of Practice by the end of June for ministerial approval. This will support employers, service providers, public bodies and associations to understand their duties under the Act.
We also understand that a challenge to the Supreme Court decision to the European Court of Human Rights is likely to be brought.
In relation to single-sex spaces, the precise legal implications of the case are still unclear. However, the EHRC guidance states that employers have an obligation to provide sufficient single, biological sex toilets and washing and changing facilities (where needed). It goes on to state that trans people could be precluded from using facilities not of their biological sex (although this is a difficult area and care should be taken), although they should not be put in a position where there are no facilities, meaning where possible mixed sex facilities should also be provided. Although employers could have unisex areas on, say, ground level, and designated single sex spaces on others, it is not enough for employers to designate all facilities as unisex unless they are in a lockable room (not cubicles) and are intended for the use of one person at a time.
There is nothing in the Act itself which requires employers to provide single-sex toilets/ facilities. However, The Workplace (Health, Safety and Welfare) Regulations 1992 require separate toilets and facilities to be provided for “men and women”, save broadly where each toilet/facility is in a separate room lockable from the inside.
Not only may this be challenging for small employers and be a significant cost to any business, but it carries with it the real-world complication of potentially outing colleagues and employees who, under the strict interpretation of the law, may currently be faced with using facilities designated for their biological sex whilst employer’s adjust spaces.
It is important to remember that trans people still maintain important protections under the Act. There is also a risk of discrimination and harassment-based claims from all round, for example, a strict biological approach may result in trans people bringing claims based on gender reassignment if they cannot use the toilet of their choice; on the other hand, allowing this risks claims from people who do not want to share single-sex toilets. This leaves employers with a judgment call, taking a pragmatic approach with account of the current decision and understanding your workforce as well as awaiting the full EHRC guidance.
Whilst employers await further guidance and revised codes of practice, it is worthwhile:
This landmark ruling will certainly cause challenges down the road for employers and debate will no doubt continue for some time. To make matters more complex, the Court of Appeal’s judgment on Higgs –v- Farmor’s School (see earlier updates) has been appealed to the Supreme Court. Warners will keep you updated as guidance is provided and uncertainties are clarified.
Until then, we are here to support you and your business in addressing and managing discrimination in the workplace by providing advice on your legal responsibilities and duties, reviewing and updating your policies and procedures to ensure compliance with the law.
To book an appointment or to discuss this further, please contact Hope Flashman-Wells, [email protected] or Louise Brenlund at [email protected] at 01732 770660.
This article is for general information only and does not constitute legal or professional advice. Please note the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.
