New ruling regarding transgender rights

In the case of For Women Scotland vs The Scottish Ministers, the unanimous ruling was returned: the definition of women under the Equality Act 2010 refers to biological sex.

Full details here: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) - UK Supreme Court

The appeal was raised following the interpretation of the Scottish Gender Representation on Public Boards Act (2018), that transgender women shall be regarded as women in the context of the legislation (the Act advises on the inclusion of women in leading roles and on public boards, recommending a 50% representation rate).

But the ruling may be more far-reaching than this Scottish law.

Gender critical groups have for some time now voiced concern as to the rules applying to women, men and persons undergoing gender reassignment, particularly when it comes to inclusion and discrimination issues.

As this appeal decision was made by the Supreme Court, the view of the law is now clear: women are only classed as women if they are so by sex, and biologically.

Trans rights groups have voiced their concerns, but in order to address these, the UK Government would have to initiate a review of the Equality Act 2010.

Opposition to Supreme Court sex ruling is ‘wishful thinking’

What does this mean for employers?

Ultimately, discrimination, exclusion and harassment is unacceptable for any reason. So, employers should continue to enforce their rules and educate team members on issues of trans- and homophobia, as well as sexism etc.

We envisage that pronoun use may once again come under fire following these latest announcements. However, employers are advised that protection under gender re-assignment still remains under the Act and that an individual’s gender choice is still a legal right.

If you record data such as gender pay gap reports, any individuals currently transitioning should be included with the representation group of their biological sex.

Employers may also wish to review their policies to ensure that the correct wording is being used, reflecting this clarification.