The UK Supreme Court has ruled that the term “woman” in the Equality Act 2010 refers specifically to biological sex, rather than including transgender women who hold a Gender Recognition Certificate (GRC).
The judgement, delivered on Wednesday 16 April, overturns earlier guidance from the Scottish Government that had broadened the definition to include individuals with GRCs under the protected characteristic of sex.
The case was brought by campaign group For Women Scotland, who challenged the Scottish Ministers’ guidance for conflating the separate protected characteristics of “sex” and “gender reassignment”. Lord Hodge, delivering the unanimous judgement, confirmed, “The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
He also cautioned against seeing the decision as a victory for “one group over another”. The ruling confirmed that transgender individuals remain protected under the characteristic of gender reassignment.
CIPD response
This decision has significant implications for employers, HR professionals and those responsible for ensuring equality and inclusion in the workplace. The ruling delineates legal protections between biological sex and gender reassignment, requiring closer examination of policies relating to workplace facilities, data collection and staff training.
Peter Cheese, chief executive of the CIPD, the professional body for HR and people development, commented, “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.
“Employers will need to ensure that their policies and approaches are up to date with today’s legal clarification of the position in the UK. However, 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 added that the CIPD is now updating its content and resources for HR professionals to reflect the ruling.
Implications for HR policies and compliance
According to Tracey Burke, Senior HR Consultant at WorkNest, the ruling provides long-term clarity for employers previously dealing with conflicting interpretations of equality law. She said the decision “provides a more certain legal foundation – ensuring that compliance and compassion go hand in hand”, but warned that organisations must be sensitive to the needs of transgender staff and continue to foster inclusive environments.
Phillip Pepper, employment partner at Shakespeare Martineau, also described the Supreme Court ruling as offering a “clear path forward” for employers, although he noted the potential for short-term division in some workplaces. He argued that the Equality Act requires an urgent update to ensure transgender people retain protection from discrimination and are not placed at a disadvantage by the clarified legal definition.
“Some workplaces have become divided on the issue, which means communication, training and zero tolerance on bullying will be vital to ensure that transgender employees do not feel uncomfortable at work,” he added.
Polly O’Malley, Partner at Browne Jacobson, warned against immediate changes to workplace policy without careful review. She urged employers to consider their current practices in light of the Court’s confirmation that transgender individuals remain protected under the characteristic of gender reassignment.
Calls for legislative clarity and ongoing legal developments
Jonathan Mansfield, Employment Law Partner at Spencer West LLP, noted that the Supreme Court ruling may impact areas such as equal pay, which is tied to biological sex. He pointed out that trans women may not have the same rights under the current interpretation, for example in bringing an equal pay claim. He also acknowledged that not all trans individuals are covered by current gender reassignment protections, especially those who may not meet the medical and legal requirements for a GRC.
Mansfield referred to a 2023 Equality and Human Rights Commission recommendation which also supported a biological definition of sex for legal clarity, especially for purposes such as data collection.
“There is clearly a need for legislative clarification in this area given as the EHRC noted that society has evolved considerably with regard to matters of protected characteristics of sex and gender re-assignment since the Equality Act 2010 was enacted,” he added.
Hina Belitz, partner with Excello Law, pointed to practical issues arising from the judgment, such as how parental leave might be treated when a trans man who holds a GRC becomes pregnant. Belitz noted that key rights such as those related to sexual harassment will likely remain unaffected, since they apply regardless of sex.
Reviewing workplace inclusion policies and training
Chelsea Feeney, Employment Associate at Stevens & Bolton, stated that employers may need to review HR and diversity policies to align with the Court’s clarification of “woman” as biological. She advised that single-sex services and spaces may need to be reassessed to reflect the updated definition, although exceptions may still allow for inclusive provisions.
Feeney also stressed that the ruling does not remove existing protections for transgender people, who remain covered under the characteristic of gender reassignment. Employers were advised to maintain robust anti-discrimination policies and be mindful of perceived gender when dealing with complaints or claims.
“Transgender people are also still able to claim sex discrimination because they are perceived to be their acquired gender,” she added, stressing the importance for HR professionals and employers to keep abreast of legal obligations.
Alessandra Pacelli is a journalist and author contributing to HRreview, where she covers topics including labour market trends, employment costs, and workplace issues.
- Alessandra Pacelli
- Alessandra Pacelli
- Alessandra Pacelli
- Alessandra Pacelli
