Following a recent Supreme Court ruling and increasing scrutiny over the interpretation of ‘sex’ under the Equality Act 2010, employers must act now to ensure their workplace policies and facilities comply with legal requirements.
This update, compiled by Invicta Law’s Employment, Privacy and Governance team, outlines the key steps employers should take to align their practices with the law, uphold staff and student dignity and mitigate legal risk.
1. Legal Context: Definition of Sex in the Equality Act
In For Women Scotland v The Scottish Ministers, the UK Supreme Court clarified that the term “sex” in the Equality Act 2010 refers to biological sex, not gender identity.
Key implications:
- A “woman” means a biological female, and a “man” means a biological male.
- A person with a Gender Recognition Certificate does not change their sex for the purposes of the Equality Act.
- Therefore, a trans woman is a biological man, and a trans man is a biological woman under the Act.
This clarification has significant consequences for the use of single-sex facilities, which must now be aligned with biological sex.
2. Practical Steps for Employers
Audit Current Facilities and Policies
- Review all toilet, changing, and washing facilities.
- Ensure single-sex spaces are designated based on biological sex.
- Confirm that facilities meet the Workplace (Health, Safety and Welfare) Regulations 1992, which require separate male and female facilities unless each is a single-occupancy, lockable room.
- Identify any gender-neutral or unisex facilities; these can be provided in addition to, but not instead of, single-sex options.
Update Policies and Staff Guidance
- Amend equality, diversity and inclusion policies to reflect the legal definition of sex.
- Communicate changes clearly to staff, explaining the legal context and maintaining protections against discrimination and harassment for trans individuals.
- Ensure that no one is left without access to appropriate facilities – gender-neutral options should be offered where possible.
Engage and Support Affected Staff
- Consult with staff, especially those who may be affected.
- Handle sensitive information about trans status with care – this is special category data under UK GDPR and must be kept confidential.
Document Your Decisions
- Keep detailed records of your audits, legal advice, risk assessments and decisions. This is important if your approach is challenged.
Prepare for New Guidance
- The Equality and Human Rights Commission (EHRC) is updating its statutory Code of Practice to reflect the Supreme Court ruling. This is expected to be submitted to Government by end of June 2025.
- A public consultation will launch in mid-May to gather views on how the ruling should be implemented.
- Employers should act now but stay ready to adapt policies once new statutory guidance is issued.
Manage Individual Cases with Care
- Treat all staff concerns empathetically.
- Consider reasonable adjustments, such as remote working or private access to gender-neutral facilities.
Manage Legal Risk Proactively
- Be aware of potential claims from those objecting to sharing spaces with the opposite sex or trans individuals feeling excluded.
- Ensure that decisions are justified, proportionate and in line with the Equality Act.
Summary
Public sector employers must now act to ensure that workplace and service provision policies – especially those relating to toilet and changing facilities – comply with the clarified definition of sex under the Equality Act 2010. Single-sex spaces must be based on biological sex, and employers must take care to provide suitable alternatives while avoiding discrimination.
While further guidance is forthcoming, employers are advised to review policies now, engage with staff and document their compliance decisions carefully.
For support in reviewing policies or addressing specific queries, please reach out to our Employment Law team.
Disclaimer: This article does not constitute legal advice and is provided for general information purposes only. Published 8th May 2025.
