On April 16, 2025, the Supreme Court ruled unanimously for the purpose of the 2010 equality law, the words “woman”, “man” and “sex” refer to biological sex at birth. So that, for example, trans women (biological men) remain men for the end of the discrimination law. This gives legal clarity on what was a very controversial problem. Last week, there was a deluge of comments on the decision, a large part of which was confused and contradictory. The decision is also launching very practical considerations for employers, especially since the advice on the issue to date have worked on a different basis.
We aim to distill the court conclusions; What they mean for employers and describe certain practical considerations and steps to follow.
The court's decision
The question occurred in the context of positive action measures taken by the Scottish government for the appointment of women to the boards of directors of certain public authorities – the objective was to have 50% of the non -executive members of the board of directors who were women. The question for the court was whether trans women (i.e. biological men) in possession of a certificate of gender recognition (RCMP) should count for the target. A RCMP operates to modify the sex of a person for legal purposes and implies a fairly rigorous request process, in particular by having experienced sex acquired for 2 years and producing medical evidence. The vast majority of trans people do not have a RCMP, so that the decision itself has affected a fairly low section of the Trans population, however, the impact of the decision will be much wider.
By deciding on this question, the Court had to interpret the definitions of “sex” and “woman”, as defined by the equality law. The court declared that it was clear for these purposes that sex is a binary concept, a person is either a woman or a man, and an interpretation which understood the “certified” sex of someone, would cross the definition in an inconsistent manner. The court cited provisions in the law relating to pregnancy and discrimination of maternity, which only makes sense if sex has its biological sense. Since only organic women can become pregnant, protection is necessarily limited. He also underlined the fact that gender reallocating provisions in the equality law provide distinct protections for trans people, distinct from sex.
Other provisions which, according to the Court, depend on a biological interpretation of sex and which would otherwise be both incoherent and impassable, include certain exemptions from discrimination under the equality law. In particular, the provision of unique services and installations (for example, the changing rooms, the areas of women separated from the inns, medical or separate advice and refuge of domestic violence), which are otherwise discriminatory, are authorized in certain circumstances provided that they are a proportionate means of achieving a legitimate objective. If sex meant “certified” sex, the service provider should allow access to trans women with a RRC (i.e. organic men), they could refuse access to trans without RCMP. The court stressed that a single hospital woman could, for example, oppose the presence of organic males, but it is difficult to see how the reasonable character of such an objection could be founded in possession or in the absence of a certificate. They would essentially create a hierarchy between trans women who have a RCMP and those who do not. At a purely practical level, it would be difficult to control, especially since the possession of a RCMP is confidential.
Protection against discrimination for trans persons
The court's decision does not deprive trans persons of protection against discrimination. The court stressed that discrimination due to a protective characteristic can be based on perception. For example, a trans woman (a biological man) could claim sex discrimination because she was perceived as a woman and, consequently, he had not been offered a job that would have been awarded to her if he had been a man. His case does not depend on his real sex but on the perception and motivations of the discriminator. Likewise for a complaint for harassment, it is necessary to establish a sufficient link between the behavior of harassment and the relevant protective characteristic, the victim does not have to have this characteristic. Thus, for example, a trans woman who presents and is perceived as a woman at work and who is harassed by comments on the appearance of her appearance, could provide a complaint for harassment linked to sex.
Trans people are also protected against discrimination based on gender reallocates.
From the point of view of an employer, the obligation not to discriminate due to sex, gender reallocation or any other protective characteristic and employers should continue to comply with their policies and their legal orientations in this regard.
Unique sexual spaces and installations
When the decision is likely to have a significant impact, it is in relation to the provision of unique installations and services. These can be provided if necessary and proportional to do so (including toilets, changing rooms, hostels and medical services).
In the context of the workplace, this is likely to be most relevant to the toilets and changing facilities.
Health and safety legislation requires that there are adequate facilities for all employees. The small workplaces with only toilets with unique occupation, which are not divided according to sex, it is unlikely to have a problem. However, practical reality is that many workplaces have distinct provisions for male and female staff. Before this decision, everyday practice was to allow people to use installations that correspond to their acquired sex. It is now clear that unique sexual installations should be provided according to organic sex. This clearly poses a practical dilemma for trans people and for employers. Trans women are much more likely to prefer to use toilets reserved for women and may also be afraid that they can cause objections if they enter male facilities. There is also the risk of effectively “getting out” trans people who prefer to keep their private history, forcing them to use installations according to their birth sex.
One solution is employers to provide additional neutral gender spaces alongside single sex. However, if possible or not, it is likely to be reduced to a question of resources and physical space. The simple fact of changing the signaling into “neutral sex by sex will not be sufficient because the regulations on health and safety require specific configurations for neutral gender installations.
Other work problems
Employers must be aware that tensions in the workplace can be raised as a result of this decision, with the potential of conflict between different individuals and groups and in particular trans and those who have gender critical beliefs. These two groups are protected by the equality law and all conflicts will require careful manipulation and imply respect for balancing for different opinions and beliefs and protection of personnel against harassment.
Employers also owe an obligation of diligence which extends the psychological well-being of their staff, some of whom may feel particularly vulnerable following the decision.
Practical advice for employers
The EHRC announced that it updated its directives in the light of the court's decision. In the meantime, the following is a few practical steps to consider employers:
- Remind the staff of policies and existing protections against discrimination and harassment and their obligations under the latter.
- Explain all the practical changes resulting from the decision, for example, in relation to the use of unique sexual installations.
- Commit yourself with the groups affected to understand concerns and find practical solutions.
- Look at the current installations (toilets / locker room) and assess if something is to and can be changed in the light of the decision. If possible, a mixture of installations, neutral between the sexes alongside unique sexual spaces, is probably optimal.
- Document what considerations have informed your approach / all the changes to the installations.
- Take legal advice on specific issues arising from your work population / employee.
Eliza Nash is a partner of Constantine Law.
