Legal definition of a woman

The Supreme Court have decided that the legal definition of a woman is someone who is biologically a woman. It does not include a transgender woman.

The case was brought after the Scottish government introduced a law to try to get more onto public sector boards. A campaign group challenged the Scottish government’s view that a woman included someone with a gender recognition certificate which recognised them as a woman. Whilst the Scottish Courts had said the definition of sex was not limited to biological or birth sex, the Supreme Court disagreed.

This ruling does not mean that transgender employees lose all protection under the law. It is still unlawful to discriminate against someone due to gender reassignment. But the decision could cause its own problems. For example, previously it was thought that it would be discriminatory to prevent a transgender employee from using the toilet or changing room associated with the acquired gender. Following this ruling, it is potentially possible for an employer to lawfully require a transgender employee to use facilities associated with their birth sex. Whether it will in fact be lawful will depend on what the employer can objectively justify.

Trans employees are understandably likely to be incredibly unhappy and uncomfortable if they are now forced to use different toilets. If they are not “out” to their colleagues, this will compound the situation. Therefore our advice is that if an organisation has transgender employees and there is currently no problem with which single sex space they use, don’t change things. If there is concern, proceed with caution and only after carefully considering all viewpoints.

The decision will also have implications when it comes to gender pay gap reporting and equal pay claims.

If you have any questions or concerns relating to the judgment and how it affects your business, you can get in touch here.