The Supreme Court’s gender ruling is set to have implications for HR policy and work as the UK’s highest court has unanimously ruled that the terms woman and sex in the Equality Act “refer to a biological woman and biological sex”.
Giving the outcome, Lord Hodge warned against reading the judgement as a “triumph of one or more groups in our society at the expense of another” however, organisations will still need to reconsider the way they deal with some equality issues.
“We welcome the clarification from today’s Supreme Court ruling which sets out that the Equality Act’s definition of a woman is based on biological sex,” said Peter Cheese, Chief Executive of the CIPD. “This will provide further understanding for individuals and organisations in what has been a difficult area for employers to interpret and find the right balance, recognising the rights and beliefs that need to be upheld for all.”
The ruling will have implications in recruitment processes and for providing services and spaces for women. The case emerged as the result of a legal battle between the Scottish government and campaign group For Women Scotland when the group complained that transgender people would be included in quotas designed to give gender balance on public sector boards.
Equality Act Protection
The Equality Act gives transgender people protection against discrimination through the protected characteristic of gender reassignment, and against direct discrimination, indirect discrimination and harassment in their acquired gender and the Court ruling also noted that trans women can claim sex discrimination based on being perceived to be a woman.
According to Hina Belitz, partner with Excello Law much of the rights in the Equality Act 2010 such as sexual harassment will be unaffected by the ruling as both sexes can be affected.
“Employment law has long recognised sex differentials,” she commented. “This is, in fact, embedded into the very fabric of the law when considering for example, discrimination on the basis of sex. It is the bedrock of equality law to recognise a tendency towards unequal treatment based on sex, particularly for women.
Thorny Issues
“However, this will inevitably lead to some thorny issues,” she added, “for instance, a biological woman who transitions to male and receives a gender recognition certificate for doing so – if this person were to become pregnant, how will the law treat parental leave as maternity and paternity leave are differentiated in the law?”
Peter Cheese called for employers to ensure that their policies and approaches are up to date with the new legal clarification. “There will remain legal and practical issues for employers to work through to support inclusion, dignity, and fairness at work and ensure all colleagues are protected from discrimination and harassment,” he said. “We hope that today’s ruling will simplify some of the guidance and discussion in this space and as the CIPD, we are updating our own content and resources for HR professionals where needed.”
