Key takeaways

We have distilled five key legal issues for employers to consider as a result of this judgment. 

Trans people still have protection from discrimination

The judgment does not alter protections from discrimination related to the protected characteristic of gender reassignment or a person's perceived sex. A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. It does not depend on whether the person has a gender recognition certificate or has received or is receiving any medical treatment. The person could bring a discrimination claim if they suffer less favourable treatment because of gender reassignment.

A trans person could also bring a discrimination claim based on the sex someone else perceives them as having.

However, as explained below, the EqA does permit some differential treatment, based on biological sex, in specific circumstances. 

Employers may need to review their policies on workplace toilets

Pursuant to health and safety regulations, UK employers have long been required to provide separate toilet facilities for men and women except where each facility is in a separate room, the door of which is capable of being secured from inside. Man and woman in this context are very likely to be interpreted in line with the Supreme Court's decision – i.e., based on biological sex. The legal implications are as follows:

• Toilets that are not self-contained, lockable rooms ought to be single-sex and reserved for people of that biological sex. 
• Toilets that are individual lockable units/rooms, with floor-to-ceiling walls and door (as opposed to cubicles) can be provided on a unisex / gender neutral basis.
• Where toilets must be single sex under the health and safety regulations (because they do not meet the requirements for being unisex / gender neutral):
  • Allowing a trans person to use the toilets of their identified gender is not compliant with the health and safety regulations and could give grounds for another person to claim harassment or discrimination because of sex. There may also be a risk of a claim based on religious or other belief. In addition, there may also be a risk of enforcement action by the Health and Safety Executive or the Equality and Human Rights Commission.
  • Enforcing the single-sex requirement (based on biological sex) is unlikely to give grounds for a trans person to bring a legal complaint. This is because of a specific exemption in the EqA that covers action taken to comply with the health and safety regulations. It may however cause trans employees distress (particularly where this represents a change in the employer's policy) and so any enforcement steps should be taken with utmost sensitivity and employers should consider ways to provide some accommodation for trans people in the workplace, whilst still maintaining adequate single sex provision.
• There is no legal requirement to opt for regulation-compliant, unisex / gender neutral toilets over single-sex toilets.
• Different options (e.g., female, male, unisex / gender neutral) can be provided. The legal analysis of usage of the single-sex space options would depend on whether they are regulation-compliant. 

While the Supreme Court judgment determines the legal position, it does not (and could not) address the question of how, practically, organisations should police who is using which toilet. Normally this is in practice self-policed, but employers will need to address this if complaints are made. In addition, where issues arise regarding access, employers may find it difficult to make immediate changes to their facilities that might be legally required. In the short term, employers may need to resolve such issues via workplace mediation to identify a resolution that respects the needs of different protected groups.

Many organisations will no doubt wish to ensure that their trans employees feel included. One option, where space and resources permit, will be to change toilets to all be regulation-compliant unisex / gender neutral toilets. This is a route that we have seen many employers take.

Review data collection

As a result of the ruling, employers will need to review the way in which they capture data about the two protected characteristics of sex and gender reassignment. Sex should be recorded as biological sex but employees can be given the option of separately confirming whether they identify with a sex other than their biological one. By recording each protected characteristic separately an employer is better placed to take targeted positive action to address the particular disadvantage experienced by each protected group. 

Employers will need to follow the usual rules regarding collection of personal data, including special category data. There are also strict confidentiality obligations that apply to any information that an employer acquires regarding gender recognition certificates. 

Respect at work is key, including for opposing beliefs 

This judgment has evoked widespread commentary both in the public and private arenas, including in Parliament. This illustrates that the issue of sex and gender identity remains an emotive topic where an employer needs to adopt an even-handed approach. Employers will face claims where they take disciplinary action for views that have been expressed in a respectful manner and which have not resulted in any tangible reputational damage.  

Employee communications must be balanced

Employers may be wondering whether they should issue communications to staff regarding the impact of the Supreme Court decision given the level of publicity that it has generated. However, this approach runs the risk of being seen as partisan, subject to how those communications are expressed. A key point to note is that this decision clarifies the protections available under the EqA, which has a framework that protects both the protected characteristic of sex and that of gender reassignment. Rather than issuing a communication, employers may wish to review their respect at work policies to ensure that they encompass all protected characteristics and signpost the way in which any concerns may be raised, both formally and informally. 

Case: For Women Scotland Ltd v The Scottish Ministers, Supreme Court