Trans employees: What the legal definitions of ‘man’, ‘woman’ and ‘sex’ mean to you

Trans employees: What the legal definitions of ‘man’, ‘woman’ and ‘sex’ mean to you

The Supreme Court recently determined that a trans woman with a gender recognition certificate (GRC) does NOT qualify as a woman under the Equality Act 2010.

This article explains the rationale behind the Court’s conclusions and how their ruling affects you as a trans employee.

What the court said

The Court decided that many legal provisions rely on a consistent biological definition of sex — including those concerning single-sex services, communal accommodation, and medical care.

Therefore, the terms ‘man’, ‘woman’ and ‘sex’ in the Equality Act refer to biological sex.

The Court said that allowing GRC-acquired sex to count would:

• Disrupt the coherence of the Equality Act, particularly in areas such as pregnancy, maternity, and sex-based protections
• Erode protections for others, such as lesbian-only spaces and associations
• Unfairly divide the trans community by giving greater rights to GRC-holders
• Create practical issues for service providers, who cannot lawfully ask if someone holds a GRC

Trans employees are still protected

The Court emphasised that this definition does not remove protection from trans employees, with or without a GRC.

• Trans employees are still protected from discrimination on the ground of gender reassignment
• They are also able to claim direct discrimination, indirect discrimination or harassment due to perception or association with their acquired gender

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How did the ruling come about?

In 2018, the Scottish government launched new laws requiring positive action to be taken to redress gender imbalances on public sector boards in Scotland – the Gender Representation on Public Boards (Scotland) Act 2018 and accompanying statutory guidance.

The guidance stated that transgender women with a GRC counted as women for the purpose of the Equality Act. As such, trans women would have the right to access single-sex services (except where their exclusion could be justified).

For Women Scotland Ltd (FWS) campaigns for the strengthening of women’s and children’s rights in Scotland. In 2022, FWS challenged the new Act’s definition of ‘woman’, arguing that it went beyond the legislative competence of the.

Initially, the Outer House of the Court of Session upheld the government’s guidance. FWS also failed when they appealed to the Inner House, but eventually won their case at the Supreme Court.

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Example1

If you’re a transgender woman and you’re refused a job because you’re perceived to be a biological woman, you’d have a claim for direct discrimination because of your perceived sex.

The comparator would be someone who is not perceived to be a woman.

The fact that you’re not a biological woman should make no difference to your claim, which would be treated in the same way as a direct discrimination claim made by a biological woman based on her sex.

Example 2

If you’re a trans woman who is treated less favourably because of your association with women, you could claim sex discrimination by association.

The comparator would be someone who was not associated with women in the same way (whether that’s a biological male living as a man or a trans man).

What this means to you

Your employer should provide an inclusive environment where all employees are treated with dignity and respect, whether you’re trans or not.

For example, they should provide:

• Sufficient suitable sanitary facilities, which can either be single-user, lockable and unisex OR separate for men and women
• You cannot legally be excluded from using toilets that match your gender
• They have no legal right to check who uses which facility
• They do not have the right to see medical or legal evidence of your transgender status

Your employer should also publish policies confirming that trans people can use the toilet facilities that align with their gender, and should train all their employees to uphold a culture of inclusion, avoid making assumptions, and to handle complaints sensitively.

It’s an unsettling time for many employees, but we’re here to help.

We are employment lawyers with offices in Northern Ireland and England, who act for employees throughout the UK.

If you’ve experienced discrimination at work because you’re trans, or perceived to be trans, please talk to us. The initial call is free and with no obligation. We’ll let you know your chances of winning and what to do next.

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