Understanding Gender Reassignment Discrimination

On 16 April 2025, the Supreme Court donned its legal robes and waded into the deep end of the gender pool with For Women Scotland Ltd v The Scottish Ministers. The judges made waves by ruling that under the Equality Act 2010, the terms “woman” and “sex” refer to biological sex – not gender identity – even for those with a Gender Recognition Certificate (GRC).

In plain English: when it comes to single-sex spaces, the law now says you must go by biology, not identity. That means, for example, trans women may lawfully be excluded from women-only spaces, provided that there's justification to do so.

What does this mean for employers and business owners?

The Equality and Human Rights Commission (EHRC) is now busy updating its code of conduct for services, following the judgment. However, business owners will now need to review their practices and consider whether any changes ought to be made to ensure that spaces and/or services provided to its personnel and/or the public, are appropriate in light of the ruling.

That said, there is not an automatic requirement on small businesses to make drastic changes – what might be expected of a huge business will not necessarily be considered reasonable for a small business. Nevertheless, business owners should be prepared for challenge. In reviewing your practices, therefore, it is important to carry out risk assessments and keep written records of decision-making, with justification for such decisions. It is also necessary to continue monitoring the spaces and services to ensure that as the business grows or changes, it also adapts its spaces and services to suit.

Discrimination

Whilst seen by many as a blow for the trans community, the judgment does not remove the protection afforded to transgender individuals under the Equality Act 2010.

The Equality Act protection covers employees, contract workers, partners and office holders during all stages of the employment relationship, including in relation to recruitment, terms and conditions, promotions, transfers, dismissals, and training. Discrimination can take various forms – not all as obvious as others. In a nutshell, these are: 

• Direct Discrimination - When someone’s treated unfairly simply because of their gender reassignment. Think: “You’re not getting the job because you’re trans.” That’s a legal no-no.
• Absence Discrimination - Need time off for appointments related to transitioning? That absence must be treated like any other medical leave – not as an inconvenience.
• Indirect Discrimination - Sneaky stuff. If a company rule seems neutral but actually puts trans folks at a disadvantage – and can’t be justified – it’s unlawful.
• Harassment - No one wants a hostile work environment. That includes trans employees subjected to “banter” that crosses the line. Respect and kindness never go out of style.
• Victimisation - Punishing someone for standing up against discrimination? That's like putting salt in the HR wound – and it’s illegal.

Some roles may require a person not to be trans (occupational requirement) – but this is the rare exception, not the rule. When in doubt, check before you exclude.

Employer Responsibilities

If an employee discriminates against or harasses another, the employer is liable unless it has taken reasonable steps to prevent that conduct from taking place. It’s therefore imperative that employers continue to actively seek to prevent any discrimination against transgender individuals and take appropriate action against those who may step over the line.

Think about: 

• Reviewing policies: Ensure that workplace policies, including those on absence and medical leave, accommodate the needs of trans employees, such as time off for medical appointments related to transition. Consider introducing a transitioning at work policy.
• Training and awareness: Provide training to staff on discrimination and gender identity, as well as promoting the benefits of diversity and inclusivity.
• Support networks: Consider establishing support systems, such as LGBT+ staff networks or appointing diversity champions, to provide resources and advocacy for trans employees.
• Confidentiality: Treat sensitive personal information confidentially and respect an individual’s wishes to keep their gender identity private. The Gender Recognition Act makes it illegal to disclose somebody’s gender identity without their consent.
• Adjust facilities: Consider appropriate adjustments to workplace facilities, which might include providing self-contained toilets or secure changing areas.

While the Supreme Court's decision provides clarity on the legal definitions of "woman" and "sex," it does not diminish the protections afforded to trans individuals under the Equality Act 2010. Employers must continue to uphold these protections, fostering an inclusive and respectful workplace for all employees.

A legal minefield? Potentially. However, approaching it in the right way and creating an inclusive and respectful workplace will go a long way to preventing challenges and claims.

If you require any help or assistance regards this topic or anything else employment law related, please contact our Employment Law Team.