Supreme Court ruling: Here's what it means for your business

The court’s ruling naturally opens up a lot of questions – like what will this verdict mean for trans rights moving forward?

And although we’re still waiting on the full guidance from the EHRC, they have released an update in the meantime to give HR some answers about next steps.

So what does the Supreme Court’s decision and its implications mean for your business? Here’s what we know so far…

What did the Supreme Court rule?

On 16th April, the Supreme Court ruled that the legal definition of “sex” in the Equality Act 2010 means biological sex.

So, under the Equality Act 2010, the terms “woman” and “man” will refer only to a biological woman and a biological man.

Does the ruling remove certain protections for transgender people?

Sex and gender reassignment are still protected characteristics under the Equality Act.

A trans person can raise a claim for discrimination on the grounds of gender reassignment and in some circumstances on the grounds of sex. That's if they feel they’ve been treated unfairly because of those personal characteristics. So it’s vital that you are still taking steps to prevent discrimination from happening in your workplace.

There may be people in your workplace who have questions or concerns about the ruling. So it’s important to make sure that support and opportunity to ask questions is openly available.

What should HR consider?

The ruling has sparked concerns around inclusivity and discrimination risks.

So the EHRC has released guidance around how you should manage single-sex spaces in line with the change in law.

What will you now need to do as an employer?

Under Health & Safety regulations, you have a duty to provide:

• Suitable and sufficient sanitary conveniences.

In other words, you have to provide suitable toilets, changing rooms and washing facilities for all staff.

You must also:

• Provide separate spaces for men and women.

Note: the exception to this rule is where a space is a self-contained lockable room with a toilet and handwashing facility. This a space that only one person at a time can use. If you have separate, lockable facilities then anyone can use these facilities.

If you need to provide single-sex spaces, what facilities should trans people use?

It may be the case that you have single-sex facilities and no self-contained facilities. If so, then under this ruling, a trans woman should not use the women’s facilities, and a trans man should not use the men’s facilities.

However, the law does allow in some cases for trans people not to use facilities that match their biological sex. This is dependent on specific circumstances and on a case by case basis.

What’s vital to note is that a trans person must not put in a position where there is not a facility for them to use.

So where possible, you should provide mixed-sex toilets, washing or changing facilities in addition to your single-sex facilities.

What are the main takeaways?

Currently, we’re still waiting on further guidance from the EHRC. So we can’t confirm all the details just yet.

But the main takeaway is that trans people are still protected under the Equality Act and this ruling doesn’t change that.

Because of the sensitive nature of the ruling, you should take extra care and caution when it comes to changing any policies relating to single-sex spaces.

You will still need to work on creating an inclusive workplace where everyone feels welcome and accepted.

If an employee feels they are experiencing discrimination or harassment in any way, then they could take you to a tribunal. As an employer, you do also have a legal duty to take reasonable steps to prevent harassment (see below guide).

There’s a lot to unpack. But Peninsula experts are on hand to advise.

To learn more about how you can create an inclusive and supportive work environment for your staff and stay in line with legal updates, here are some useful guides you may want to give a read:

• How to be inclusive at work
• What is harassment at work?
• What is the Equality Act 2010?
• What is discrimination in the workplace?

And if you have any queries and would like to speak to an HR expert directly, you can also book in for a free consultation below: