During the Supreme Court hearing yesterday (16 April), Judge Lord Hodge stressed that the law still protects against discrimination to transgender people, and that the ruling should not be seen as "a triumph of one or two groups in our society at the expense of another".
The Supreme Court was asked to decide on how to interpret the 2010 Equality Act. Lord Hodge described the question as one that concerns how the words 'woman' and 'sex' are defined when applied within the legislation.
"It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word 'women' other than when it is used in the provisions of the EA 2010," Hodge said.
"The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
In light of the ruling's high-profile coverage, employers should continue to support transgender employees, emphasised Tracey Burke, senior HR consultant for the HR and employment law consultancy WorkNest.
Burke told HR magazine: “HR leaders and employers must remain vigilant in supporting transgender employees by having a zero-tolerance approach to bullying or harassment, and ensuring inclusion isn’t compromised.
“Once the full implications of this ruling have been established, updating workplace policies, training, and internal communications will be essential to maintaining a respectful environment. This is a chance for HR to reinforce inclusive leadership while confidently navigating the legal landscape.”
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HR leaders and employers will need to clarify and update their policies and procedures following this ruling, added Amanda Arrowsmith, the CIPD's people and transformation director.
Speaking to HR magazine, she said: “HR professionals will need to ensure that their policies are updated to reflect the clarified legal position, which we are doing at the CIPD for our own guides. Employers’ equality, diversity and inclusion policies and practices should not need to change, though wording may need to be adjusted to reflect the clarified legal position. For example, recruitment practices for some roles where the candidate needs to be a particular biological sex may need to be adjusted.
“HR professionals should also make sure that line managers are equipped with the skills needed to navigate sensitive conversations confidently and respectfully, and that they are able to signpost employees towards sources of support, such as wellbeing channels or employee resource groups.”
The CIPD is updating its own content and resources for HR professionals to use.
The court's judgement made clear that trans women can continue to bring gender discrimination claims against their employer if they had been discriminated against because of perceived sex, or because of an association with biological women.
"The fact that she is not a biological woman should make no difference to her claim, which would be treated in the same way as a direct discrimination claim made by a biological woman based on the sex of the complainant herself," the judgement documentation stated.
Read more: How HR can create a trans inclusion policy
Chelsea Feeney, an employment associate at law firm Stevens and Bolton, recommended that employers check their policies' alignment with legal protections for trans people.
Feeney told HR magazine: “It is important for employers to heed the fact that transgender people are still protected from discrimination on the basis of the protected characteristic of their gender reassignment, under the Equality Act 2010. Employers must ensure that their codified policies and the day-to-day culture of their workspaces take account of this, or they could risk opening themselves up to claims of discrimination on the basis of gender reassignment.
“Implementing universal spaces, such as gender-neutral toilets, is one way that employers can look to embed inclusivity, although all policies should be assessed on a case-by-case basis to tailor them to the specific needs of a company and its employees.”
Now may be a good time for employers to remind their employees of the measures they are taking to protect and support them, added Rob McKellar, legal services director for HR and law advice firm Peninsula.
He told HR magazine: “Employers should continue to ensure that they have appropriate EDI policies in place, and that they put these policies into practice in operating a respectful, diverse and inclusive workplace. Some employers may find this appropriate time to remind their employees of support measures they have in place, for example an employee assistance programme (EAP), for any employees who feel particularly affected by the judgment and want to talk to impartial trained counsellor.”
Yesterday’s ruling was the conclusion of a legal battle between women’s rights campaign group For Women Scotland and the Scottish government.
The dispute began in 2018 when Scottish Parliament designed a bill to ensure gender equality across all public sector boards.
Read more: Three ways to fight for gender equality in an economic crisis
Yesterday’s hearing saw the Scottish government argue in court that transgender people with a gender recognition certificate (GRC) are entitled to the same sex-based protections as biological women.
For Women Scotland argued against this, and claimed that sex-based protections should apply only to people who are born women.
Jonathan Mansfield, employment law partner at law firm Spencer West LLP, agreed with other commentators about the need to review and possibly change the wording of workplace policies.
He told HR magazine: "Reviewing the wording of such policies to check definitions such as that of 'woman' and 'sex' is recommended. Above all, I recommend a refresher on these policies including the anti-harassment policy, through communication and training. The purpose of training will not be to highlight a particular group but to reassure employees, whatever their biological or identified sex, that they are protected by law and that the employer stands behind such policies and had complaints mechanisms.
"Another area for review is how gender pay gap data for organisations with 250 or more employees will be impacted, which is not completely clear from the ruling because of the terminology used in the relevant regulations."
Mary Walker, a partner at law firm Gordons, reminded HR to be fair and equitable in light of this latest Supreme Court ruling. She told HR magazine: “Daily challenges that arise need to be addressed with fairness and equality. The Supreme Court’s decision was clear that the trans community is still protected in law.
“Employers would be wise to review their DEI policies in light of the case, but a wholesale rollback from DEI is not advised.”
