Supreme Court ruling on the Equality Act 2010 and the meaning of “sex”, “woman” and “man”

Many of our clients in the education, charity, faith, business, and public sectors will be aware of the widely reported Supreme Court judgment last week on how the Equality Act is to be interpreted in relation to the terms “sex”, “woman” and “man”. Organisations may be concerned as to the practical implications for their people, members, and of course service users.

In brief, the court ruled that where these terms are used in the Equality Act they refer to biological sex, on the basis that to read this otherwise would be to make the Act incoherent and impractical to operate. This will be relevant to how organisations approach single sex services, separate spaces and sport.   

The court emphasised that the Act retains its important protections against discrimination for transgender people on the basis of the protected characteristic of gender reassignment. In the case of adults, this is regardless of whether or not they possess a Gender Recognition Certificate (GRC). One of the other reasons for the decision was that any other interpretation, the court said, would give trans people with a GRC greater rights than trans people without.

This was a complex, 88 page judgment, based on a close reading of the law which has been received both negatively and positively across our society – inevitably it has been reported in a somewhat simplistic fashion which has caused concern amongst some groups.  

We are conscious that this ruling will cause many of our clients to review their policies in relation to employees, volunteers, members and service users. The Equality & Human Rights Commission (EHRC) has indicated that it will revise its statutory guidance as quickly as possible, though this is not likely to be forthcoming before the summer.  It will be necessary, in the near future, for organisations to take stock and work out responses and next steps and Stone King will soon be issuing sector based guidance and advice. In the meantime, and if you would like to discuss further then please contact:

• Jean Boyle or Tom Morrison Heads of Education Sector   
• Rosamund McCarthy Etherington, Head of Charity Sector
• Melanie Carter, Partner and Head of Public & Regulatory 
• Luke Watson, Partner and Head of Private Client
• Ciara Campfield, Partner and Head of Business and Social Enterprise
• Lee Coley, Partner and Head of Faith Sector