The Question
Does a transgender woman with a Gender Recognition Certificate (GRC) qualify as a woman for the purposes of the Equality Act 2010?
The Answer
The Scottish Supreme Court ruled that sex in the Equality Act 2010 refers to biological sex, therefore a transgender person does not qualify as a woman. Transgender persons already have protection against direct discrimination and harassment through discrimination by association or perception under Section 19 of the Equality Act 2010. The Court emphasised that this ruling does not deprive transgender persons of legal protection.
The Court held that the terms 'man', 'woman' and 'sex' in the Equality Act refer to biological sex. Allowing an extension to cover transgender men or women would disrupt and distort the Act’s application in areas such as pregnancy, maternity, and sex-based protections. If the definition was extended, it would create unfair divides in the trans community, and create practical issues for employers and service providers – who cannot lawfully ask someone if they hold a Gender Recognition Certificate. Many provisions - including those for single-sex services, medical care and treatment, and communal accommodation rely on a definitive and consistent biological definition of sex.
The Risks and Threats
Employers will need to reconsider their existing policies on single sex workspaces such as bathrooms, toilets, and changing rooms to ensure everyone has a suitable space they feel comfortable in. Employers must make sure all transgender employees are represented and feel comfortable and safe. Communication, training, and zero-tolerance on bullying and harassment will be crucial. The LGBTQ lobby has expressed the ruling as incredibly worrying.
What You Need To Do
If you require any further advice and assistance, please do not hesitate to contact the HR Advice Line Service for FREE on 01455 852 028.
