Legal definition of 'Woman' - confirmed by Supreme Court Ruling
British Supreme Court unanimously rules legal definition of ‘Woman’ excludes trans women’s identities.
Yesterday, The Supreme Court issued a landmark ruling over whether a transgender person with a gender recognition certificate (GRC), that recognises them as female, can be regarded as a woman under the equality laws.
The judgment considered the interaction between the Equality Act 2010 and the Gender Recognition Act 2004.
The Supreme Court found unanimously that the definition of woman and sex in the Equality Act 2010 refer to a biological woman and biological sex rather than what was described as certified gender (as a result of a person changing their gender and gaining a gender recognition certificate reflecting their acquired sex under the 2004 Act).
The Supreme Court has said - trans people – whether trans woman or man – will not be disadvantaged by its decision as the Equality Act afforded them protection against discrimination or harassment.
What do employers need to know?
Although the Equality Act already prohibits discrimination against a person linked to their transgender status, and this includes the fact they are going to transition their gender, are proposing to do so, or have completed that process. That protection applies early, by including an individual who is proposing to undergo a gender reassignment process (as well as those undergoing such a process and those who have changed gender).
The Equality Act has specific provisions to ensure that where an individual required time off or is absent due to the transition process, they are treated consistently with other staff and not denied that time off because of the reason for their absence.
There is still some protection where a person who is transgender is discriminated against because of their perceived sex rather than because they are trans, given the Equality Act allows a claim of discrimination based on the discrimination, and as a result of a individual holding a perceived protected characteristic.
There are laws which protect an individual who holds a gender recognition certificate giving them privacy rights and restricting the use of any information about their previous gender as special data; this protection applies in the workplace and to those providing services. This decision does not change that.
The risks for employers often arise around harassment and where hostile or inequitable treatment occurs against a transgender person. For example, where a male-to-female transgender employee is treated less favourably than a biological woman. Another example is where comments made about her, or her appearance, are linked to her transgender status: that could be unlawful harassment based on their protected transgender characteristic.
It is important that employers understand and aware of the Supreme Court judgment and that it is limited to a specific point regarding the definition of woman in the Equality Act but that it does not remove or change an employer’s obligations in the workplace or the need to behave fairly and equitably in the treatment of those who are transgender.
If you are an employer and have any questions about the Supreme Court judgment, please contact Vaishali Thakerar, Director, Solicitor, Employment Law team, Lawson West Solicitors.
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