This widely-publicised decision has found that ‘sex’ means ‘biological sex’ for the purposes of the Equality Act. The implications of this for employers include the following:
Discrimination Claims
A person claiming sex discrimination under the Equality Act must do so on the basis of their biological sex even if they have a gender recognition certificate (‘GRC’) changing their sex on their birth certificate. So, for example, a trans woman with a GRC who was biologically born a man cannot claim less favourable treatment than a biologically born man – her comparator would have to be a biologically born woman.
However, they will still be able to claim discrimination if the less favourable treatment is because of gender reassignment (which covers those who are proposing to transition, are transitioning or have transitioned) or because they are perceived as a woman/associated with women.
Equal Pay
For equal pay claims, where a comparator of the opposite sex is required, the position is potentially more tricky for transgender people. For example, a trans woman with a GRC who was biologically born a man will not be able to use another biologically born man as a comparator – the comparator would need to be a biologically born woman.
Use of facilities at work
Health and Safety legislation requires employers to provide separate facilities (toilets and washing facilities – and changing facilities where they are needed) for men and women, except where there are separate rooms suitable for one person at a time only which are lockable from the inside (not cubicles).
Although this ruling does not consider who is a ‘man’ or a ‘woman’ for the purposes of health and safety legislation, it does give a steer that a court would consider the same factors as in the Supreme Court’s decision on the Equality Act – and therefore conclude that female facilities may only be used by biologically born women and male facilities may only be used by biologically born men. Therefore, employers are likely to be in breach of health and safety legislation if they fail to provide separate facilities for biologically born men and women.
It is possible that transgender people could still bring claims for indirect gender reassignment discrimination if they are not able to use the facilities of the sex with which they identify, but employers would appear to have a clear justification defence as they would be complying with a legal duty.
This means that other separate spaces will need to be provided for transgender employees or even unisex facilities for all which are separate and lockable from the inside.
The issue of biologically born women who present and have the appearance of men is more tricky. It might be proportionate to exclude them from women’s facilities, but this is an untested area.
Employers – Positive Action
Where positive action is permitted/required to increase the number of women, trans women biologically born as men will not need to be included in this number (although they could still claim less favourable treatment if not selected on the basis of gender reassignment or because of perception/association with women).
Single Sex Service Providers
Employers who are providers of single sex services will need to carefully consider their policies, and whether their services fall within one of the exceptions to discrimination under the Equality Act where single sex services are necessary/proportionate.