Recent Court Ruling on the Definition of ‘Sex’ – What SME’s Need to Know

A recent Supreme Court ruling has clarified that, for the purposes of the Equality Act 2010, the term “sex” refers to biological sex — not gender identity.

So what’s changed?

The ruling has reaffirmed that under the Equality Act, the protected characteristic of

sex is based on an individual’s sex as recorded at birth, not their acquired gender or gender identity.

To protect your business, it is now more important than ever to understand the legal

implications this definition will have and ensure policies are applied fairly and

consistently, especially in areas such as:

• Staff Facilities – such as toilets and changing rooms.

• Recruitment Practices – specifically where there is a requirement for a single-sex occupational exception.

• Inclusion, diversity and equality policies.

What should I do now?

• Review equality policies – ensure these are clear and lawful and remain consistent with the legal definition of sex under the Equality Act.

• Train managers – ensure managers who will be handling grievances, welfare meetings or involved with HR decisions understand this new ruling and are able to apply it with sensitivity.

• Handle cases with care – Balancing the rights of all employees remains essential, employers must ensure they are compliant with all nine protected characteristics, including gender reassignment and sex.

This new ruling on the definition of sex has also prompted the Equality and Human

Rights Commission (EHRC) to release some interim guidance on how this affects

the use of single-sex services and spaces in the workplace.

• Businesses must provide sufficient single-sex toilets, hanging and washing facilities where required – not providing this may leave your organisation open to an indirect discrimination claim if the only facilities are mixed-sex.

• Facilities for trans people may need to be evaluated on a case-by-case basis, but this may require the provision of a mixed-sex facility as well as single-sex.

• Where facilities are in lockable rooms (not cubicles), which are only intended for the use of one person at a time, these are sufficient for all sexes.

Despite this ruling, employers should always strive to provide an inclusive workplace for all employees, regardless of any protected characteristics, failure to do so could leave you open to a discrimination claim at a tribunal.

Create a Safer, Compliant Workplace

With this new legal clarification, it's crucial that your workplace policies reflect current legislation and are applied fairly and consistently. To support small businesses in staying compliant, Nicholl HR offers an Anti-Harassment and Bullying Policy Template.

Anti-Harassment and Bullying Policy.docx

Download DOCX • 31KB

This can serve as a foundation to help you align with the Equality Act which outlines the steps for addressing inappropriate behaviour and ensuring a respectful, legally compliant working environment. while promoting a respectful and inclusive workplace for all staff.

If you need help reviewing your Equality, Diversity and Inclusion Policies or would

like further guidance on how this ruling may impact your business, get in touch!