Where does The Supreme Court’s gender ruling leave business owners?

In April a ruling by the Supreme Court made headlines around the world as the highest court in the land, and the leader in common law, delivered a significant ruling on the interpretation of the term “sex” within the UK’s Equality Act.

The case was centred around whether definitions such as man, woman, male, and female should reflect a person’s acquired agenda under the Gender Recognition Act 2004 (GRA), which allows individuals to obtain a Gender Recognition Certificate (GRC) and change their legal sex, or whether it should be based on biological sex at birth.

In a unanimous decision, the UK Supreme Court ruled in favour of the latter referring to issues around pregnancy and maternity discrimination, single-sex services, and shared facilities. The Court clarified that individuals with a GRC should not automatically be treated as their acquired gender when it comes to rights under the Equality Act 2010. As an example, a biological male who identifies as a woman and has a GRC cannot bring forward a sex discrimination claim as a woman.

So, with the Equality and Human Rights Commission (EHRC) due to deliver guidance in the coming weeks, where does this ruling leave business owners and employers, and how can they ensure their organisations operate within the law while at the same time support their employees? Let’s cover the essentials.

Now’s the time to review policy, guidebooks and practices

First and foremost, the Supreme Court’s ruling sets a legal precedent. This means your internal documents such as workplace policies, employee handbooks, and HR processes must reflect the Court’s findings and therefore the updated legal definition of sex.

The devil is always in the detail, so precise language matters. Reviewing these documents and making sure they comply isn’t a choice, but a must do. Doing so will ensure your organisation remains compliant; help reduce the risk of future claims while also demonstrating you are operating in accordance with the law.

It’s not just about protecting your organisation from the risk of claims and reputational damage, these materials provide clarity to all employees and send a clear message to staff, clients, and other third parties that your business is committed to fairness and is proactive.

Employer Provisions

Employers must reassess how they manage single-sex spaces such as toilets, changing rooms, and other gender-specific facilities. Under workplace regulations, employers are required to provide appropriate single-sex facilities and must ensure that these provisions comply with the law. Where separate spaces are not feasible shared facilities must be lockable from the inside. Employers also must consider the needs of transgender individuals, to ensure access to appropriate spaces, to protect their privacy and dignity.

Going forward, in accordance with the recent ruling, these standards need be addressed according to biological, not acquired or self-identified sex. If this isn’t adhered to, an employer faces an increased risk of a successful discrimination claim.

Clarity and Guidance for Managers and Staff

When legal definitions change, clarity is key. Make sure everyone in your organisation, particularly those in HR and leadership roles, understand what the changes mean in practice.

Clear communication and guidance on the implications of the decision will help ensure that:

• those in senior roles are confident in handling complaints and having sensitive conversations;

• employees know their rights as well as their responsibilities; and  

• HR teams apply policies consistently and lawfully.

Staff training

It may sound obvious, but training can often be overlooked. It’s important to ensure employees fully understand the changes arising from the Supreme Court’s decision to avoid falling foul of the law. Consider tailored sessions or broad awareness training for all members of staff to help bring them up to speed and let employees know who they can contact in they have any questions. Furthermore, internal messaging should be updated and/or put in place advising on the implications of the change in the law, if it hasn’t been done already.

The need for clarity on exceptions or exclusions

The upcoming guidance from EHRC should bring with it further clarity for business owners and employers while highlighting exceptions and exclusions. While we await further information however, employers should continue following the current legal framework and stay alert to updates.  

Following the ruling, further clarity is needed in relation to trans people.  For example, what spaces they can use where an employer only has male or female toilets and how employers can have conversations about a person’s gender status without causing offence.

Waiting for guidance from the EHRC doesn’t mean waiting to act. By taking sensible and sensitive steps now, you can seek to protect your business from legal risk, demonstrate your commitment to equality, and provide clarity and confidence to your employees.