Gender, Sex, and the EHRC: What Should Businesses Do Now?

As you have likely seen, there have recently been some major developments concerning legal opinions and guidance on the definition of “sex” in The Equality Act 2010.

First, on Wednesday 16^th April, the Supreme Court ruled in the case of For Women Scotland vs the Scottish Ministers. They said that for the purposes of the Equality Act, “sex” meant “biological sex”, which they have defined as “birth sex”. Therefore, they said that trans women could be deemed biologically male and trans men as biologically female when considering cisgender and trans rights and responsibilities under the Equality Act.

There were several legal and ethical issues raised about this judgement, including:

• that the judgement was reached without hearing from any trans organisations or trans people, leading to a decision about trans people’s lives without their input. Legal scholar Stephen Whittle and former High Court judge Victoria McCloud – both experts, both trans – attempted to be heard, but were refused by the Supreme Court.
• that the concept of “biological sex” is not as simple or binary as the judges seemed to assume. For example, intersex people exist, meaning that chromosomes, hormones, and other physical characteristics can come in a number of forms and combinations. Additionally, it is possible for hormones, physiology, and appearance to change drastically with HRT and surgeryhttps://www.gendergp.com/blog/hrt-timelines-hormones-effects/, meaning that you cannot always tell birth sex just from looking at a person.
• that the Gender Recognition Act of 2004 states:
  “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
  This means that people with a gender recognition certificate have had their legal identities undermined by the Supreme Court ruling.
• that the lead official for the Equality Act 2010, Melanie Field, disagreed with the court’s ruling.

As you can see, the ruling itself was already proving controversial and potentially on shaky ground.

Then, on Friday 25^th April, the Equality and Human Rights Commission (EHRC) issued an interim update containing guidance for workplaces and organisations based on the Supreme Court ruling. You can read it in full here.

This has raised further concerns and outcry for many reasons, including:

• that, once again, “biological sex” is not a strict binary and cannot be known for certain just from looking at someone;
• that the current guidance appears to allow for the exclusion of trans people from all gendered toilets in workplaces, forcing them into a third space (with little consideration of whether all workplaces can afford or have the space to do this);
• that the above essentially constitutes bathroom segregation: male toilets, female toilets, and trans/mixed sex toilets;
• that if a workplace did manage to provide these and a trans person felt forced to use the mixed sex facilities, they would essentially be outing themselves;
• that all of this contravenes trans rights under Article 8 of the European Convention on Human Rights (ECHR), specifically the right to a private life;
• and finally, that in a practical sense, this ruling and guidance is unworkable as there is no way to confirm a person’s sex without being invasive at best and allowing sexual harassment at worst.

There have been suggestions from some that trans people can or should use the disabled toilets instead, since those are already unisex. However, not every workplace or organisation has disabled toilets in the first place – and if they do, people with disabilities often find that they are difficult to access. Therefore, forcing another demographic to use disabled toilets is not helpful to anyone.

So, now that we understand all of the issues around trans rights and what has been decided at the Supreme Court: what should businesses do next?

At this point in time, you do not have to do anything. Neither the Supreme Court ruling nor the EHRC statement have created any new statutory obligations for trans rights, only provided new interpretations. The only body that can create new laws is Parliament, so as of now, trans rights are unaffected legally.

However, what we believe you should do if you wish to be an inclusive organisation, is to reassure your staff about this topic. Many different demographics are affected: women, who may fear being challenged on their usage of toilets or facilities if they don’t look “feminine” enough; LGBTQIA+ people, who may fear further legislative attacks on their community; and disabled people, whose limited toilet facilities are being used as a throwaway solution by many in the media. And of course, there will be people who fit into all three of these categories. Reminding them that you remain committed to creating a welcoming and inclusive environment will be appreciated.

For the sake of clarity, none of this constitutes legal advice around trans rights, and we encourage you to consult with a lawyer before doing or saying anything definitive; but we believe that continuing to support all of your employees, regardless of their identities, is the right thing to do.

Nobody should fear being banned from, or harassed in, their workplace facilities and toilets. It is a sorry state of affairs that this apparently needs to be said.

If you would like staff training around these issues, we offer bitesize LGBTQ+ training and Gender Equality training; and of course, if you are an existing client, feel free to reach out to us for consultation or training.

Helen Gould

Lead Trainer

Diversiti UK