Supreme Court gender judgment — what employers need to know ahead of upcoming EHRC guidance

The Supreme Court's decision in the For Women Scotland judgment confirmed that — for the purposes of the Equality Act — the terms ‘man’, ‘woman’ and ‘sex’ refers to biological sex only. This has attracted significant public, press and political attention, with employers across the country eager for clarity and guidance on its implications including for the use of workplace facilities like single-sex bathrooms and changing rooms.

Here, employment lawyers Joe Shelston and Kate Venables lay out the practical issues that employers are facing following the decision and look ahead to anticipated guidance from the EHRC (Equality and Human Rights Commission).

Where do we stand on use of single-sex facilities?

From speaking to our clients, we know that many employers are now feeling more uncertain than ever about this issue. Of course, every employer wants to protect the right to privacy and safe spaces. They’ll also be concerned about the risk of claims — likely on grounds of sex or religion and belief — from those who feel strongly about the issue if they’re not seen to be limiting access to such spaces.

For those employers that have had more progressive policies in place, they may have offered access to facilities based on the gender with which individuals identify. Now, such policies would run counter to the decision — or at least, counter to the EHRC’s interim update — which originally advised that single-sex facilities cease to be ‘single-sex’ if they’re made available to people who weren’t of that gender at birth.

We’ll have to see how the EHRC handles this sensitive issue as it updates all of its publications and guidance.

The risks with changing policies

Changing policies to accommodate the current landscape comes with its own set of risks. Employers must consider how any changes could affect trans colleagues who also have rights under the Equality Act.

For example, disrupting existing arrangements that may have been in place for some time could open employers up to claims if this isn’t communicated sensitively or if employees subsequently feel like they’re being excluded and subjected to harassment by colleagues. 

This can leave some employers feeling caught between a rock and a hard place — particularly given the very strong feelings that exist on all sides of the debate.

A case of ‘wait and see’?

The feedback we’ve had from clients suggests that many employers are currently holding back from being overt in updating their policies and procedures to wait and see how things play out.

Unfortunately, right now this seems understandable. We’ll all have to see what the Government and EHRC guidance ultimately looks like — so there’s already a lot for employers to think about and no doubt much more to come. 

Talk to us

We’ll bring you updates on this topic in due course. If — like many others — you’re unsure about where you stand or need advice on how to handle a complaint or claim, our team is here to help.

Talk to us by sending an email to hello@brabners.com, calling 0333 004 4488 or completing the contact form below.