While the case directly concerned public sector board appointments, the Court’s reasoning has wider relevance, especially for employers navigating the complex landscape of sex, gender identity and discrimination.
Background: How Did This Case Reach the Supreme Court?
The dispute originated with the Gender Representation on Public Boards (Scotland) Act 2018, a devolved statute aimed at increasing the number of women on Scottish public boards. In an effort to be inclusive, Scottish Ministers issued statutory guidance that extended the term “woman” to include trans women holding a Gender Recognition Certificate (GRC), and potentially even those who did not hold a GRC.
For Women Scotland Ltd, a campaign group advocating for sex-based rights, challenged the legality of this interpretation, arguing that the Scottish Government had no authority to redefine the term “woman” in a way that conflicted with the Equality Act 2010, a UK-wide statute that reserves the definition of protected characteristics to the Westminster Parliament. After an appeal journey through the Scottish courts, the matter was brought before the UK Supreme Court.
Legal Issues Before the Supreme Court
The case raised three key legal questions:
- Did the Scottish Ministers exceed their devolved legislative competence under the Scotland Act 1998 by redefining the term “woman” in statutory guidance?
- Can devolved legislation alter the meaning of protected characteristics, such as “sex” and “gender reassignment”, as defined under the Equality Act 2010?
- Does the possession of a Gender Recognition Certificate legally change the sex of an individual for all statutory purposes, including those governed by reserved UK law?
The Supreme Court answered these questions decisively in favour of For Women Scotland Ltd. It ruled that the Scottish Government had acted unlawfully, holding that only the UK Parliament has the competence to define protected characteristics for the purposes of UK-wide equality legislation.
Why Is This Significant in an Employment Law Context?
Although the case focused on appointments to public boards, the principles clarified by the Supreme Court resonate throughout UK employment law. The Equality Act 2010 underpins anti-discrimination protections in the workplace, including the nine protected characteristics, two of which are central to this case: sex and gender reassignment.
The ruling reinforces that these characteristics must remain legally distinct. An employer cannot, through internal policies or local interpretation, redefine “woman” or “man” to include gender identity in a manner that contradicts the statutory framework. Doing so may not only create legal uncertainty but could also expose the employer to claims of indirect discrimination if policies fail to protect individuals on the basis of sex or gender reassignment appropriately.
Practical Steps for Employers
Employers must walk a careful line between complying with the law and embracing an inclusive workplace. Based on the Supreme Court’s decision, here are key actions employers should consider:
- Audit Equality and Diversity Policies
Review current workplace policies, handbooks and training materials to ensure they:
- accurately reflect the legal definitions of “sex” and “gender reassignment” under the Equality Act 2010;
- avoid conflating these terms with broader or alternative definitions of gender or identity not recognised in statute.
- Provide Inclusive Protections Without Redefining Law
You can (and should) support transgender and non-binary employees by:
- including clear anti-discrimination clauses that protect against harassment or victimisation based on gender identity;
- creating respectful workplace practices, such as the use of chosen names and pronouns, without asserting that this changes an individual’s legal sex.
- Update Equal Opportunities Monitoring
Ensure data collection around sex and gender is legally compliant. Where optional self-identification is allowed, make clear distinctions between legal sex (for regulatory or reporting purposes) and gender identity (for inclusivity purposes).
- Deliver Legally Accurate Training
Instruct HR teams, diversity officers and managers on the legal distinctions affirmed by this case to prevent misunderstandings that may lead to complaints or claims.
- Prepare for Policy Challenges
Be aware that clarity in policy wording is critical. Overly broad definitions, however well-intentioned, may attract legal scrutiny if they inadvertently diminish statutory protections for any group.
Conclusion
The Supreme Court’s ruling in For Women Scotland Ltd serves as a constitutional reminder that while inclusivity is a worthy aim, it must be pursued within the limits of the law.
By proactively addressing these areas, employers can foster an inclusive environment that respects and supports the diverse identities of all employees. It’s essential for businesses to remain vigilant and adaptable, ensuring that their policies not only comply with legal standards but also reflect a commitment to equality and respect for all individuals.
Implementing these practices demonstrates a genuine dedication to creating a workplace where everyone can thrive, regardless of their gender identity. This approach not only mitigates legal risks but also promotes a culture of acceptance and understanding, which is invaluable in today’s evolving social landscape.
For employers, this is a prompt to re-evaluate internal policies, update training programmes and ensure that equality initiatives are both inclusive and legally robust. Balancing the rights of all employees, regardless of sex, gender identity or sexual orientation, requires a precise understanding of the law as it stands, not as we might wish it to be.
If you require assistance reviewing your policies in light of this judgment or would like a compliance checklist prepared, please get in touch.