Prime Minister Keir Starmer has directed public sector institutions to comply with the Supreme Court’s April ruling on the legal definition of “woman” and “sex” within the Equality Act 2010.
Speaking during travel to the Nato summit in The Hague, Starmer said, “We’ve accepted the ruling, welcomed the ruling, and everything else flows from that as far as I’m concerned.”
He stated that public sector guidance must reflect the court’s interpretation and be brought into line with the decision “as soon as possible”. The ruling confirmed that “woman” and “sex” in the Equality Act refer specifically to biological sex, not gender identity, overturning previous Scottish Government guidance that had allowed the inclusion of transgender women under the category of “woman.”
The judgement, delivered unanimously by Lord Hodge, followed a legal challenge by campaign group For Women Scotland. The case centred on concerns that guidance conflated the protected characteristics of “sex” and “gender reassignment” in a way that, in the view of the court, misinterpreted the legislation.
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In response, the Equality and Human Rights Commission (EHRC) issued interim guidance in May advising that trans women should not be permitted access to women-only spaces, including toilets and changing rooms. However, full implementation across the public sector remains inconsistent two months later.
Impact on workplace facilities and employment policies
The Supreme Court’s decision has implications for HR practices, particularly in the context of gender-specific facilities and inclusion policies. Employers in both the public and private sectors are advised to reassess the use of single-sex spaces, such as toilets and changing areas, to ensure compliance with the legal definitions clarified by the ruling.
This may require the development of internal policies specifying who can access gendered spaces and under what circumstances, while continuing to adhere to existing anti-discrimination protections for transgender employees under the “gender reassignment” characteristic.
Legal professionals have urged caution and called for clarity. Liz Stevens, professional support lawyer in the employment team at Birketts LLP, said, “While the Supreme Court’s ruling was legally effective immediately on being handed down and does not require any new legislation to bring it into force, the implications of this complex judgment for workplaces are far from straightforward.”
Stevens added that the EHRC’s interim guidance has already been amended following initial criticism and noted that employers are in a difficult position while awaiting more definitive guidance.
Employers seek clearer direction amid legal uncertainty
A consultation on changes to the EHRC’s Code of Practice for services, public functions and associations closed on 30 June. However, no timeline has been announced for publication of a revised Code, and it remains unclear whether the EHRC’s separate Employment Code will be updated to reflect the Supreme Court’s interpretation.
Stevens commented, “This is unhelpful for employers trying to do the right thing by all their employees and balancing what might be viewed as competing rights and interests within their workforce.”
She noted that many organisations are likely to adopt a cautious stance, opting to delay changes until further authoritative guidance is issued. Employers are being advised to consider the potential for workplace conflict and to adopt inclusive approaches that acknowledge the ruling while also supporting diverse employee needs.
