Expert view: The meaning of ‘sex’, employer obligations and the impact on employee benefits
In April, the landmark Supreme Court case of For Women Scotland v The Scottish Ministers held that ‘sex’ within the Equality Act 2010 refers exclusively to biological sex.
Though this judgment did not create new law, it has fiercely reignited tensions regarding the interplay between the rights of trans people and those of biological men and women.
In particular, the divide between supporters of trans rights who believe a person’s sex can be changed, and those with ‘gender critical’ beliefs who believe that sex is biological and immutable.
There has been a significant amount of online misinformation about the implications of the judgment, particularly with regards to the workplace.
However, the law today is the same as it was before the clarificatory judgment., with dDiscrimination against trans people for reasons relating to gender reassignment and discrimination against those holding ‘gender critical’ beliefs being is unlawful.
Yet, because of the misrepresentation of the law on this highly emotive topic, many organisations are confused and fearful of falling foul of their employment law obligations.
So, what should employers be doing in light of the judgment?
Inclusion for all
Firstly, inclusion is for everyone and there is nothing discriminatory in recognising that the protected characteristics of sex and gender reassignment relate to groups that have different needs and vulnerabilities.
Making toilets and changing rooms ‘gender neutral’ with no single sex provision will breach workplace health and safety legislation, as recognised by the Equality and Human Rights Commission’s interim guidance . It may be tempting to take situations on a case-by-case basis, but this could lead to employment tribunal claims by workers who expect to be able to access single sex spaces for reasons of privacy and dignity.
It is also recommended that employers review their policies and training to assess and act on the risk that what they currently have is unlawful. Policies and training not based on the Equality Act 2010’s definition of sex are likely to result in unlawful conduct for which employers may be sued in the employment tribunal.
A commonsense approach to employee benefits provision
In relation to employee benefits, it is normally prudent for employers to ensure equal access for all, however this general rule should be qualified by the intended purpose of the benefit.
For example, it would be difficult for employers to justify providing death in service benefits at unequal levels between trans and non-trans people. It would not normally be advisable to provide benefits exclusively for trans workers, though support geared towards those with gender dysphoria or transitioning individuals need not be excluded.
However, there will be situations in which benefits ought not to be offered equally.
Providing group-based menopause support to a cohort including transwomen could, for instance, lead to claims of sex-based discrimination or harassment and would offer little benefit to transwomen who will not experience menopause.
If there is any difference in the benefits provided to men and women, they should be provided to employees based on their biological sex.
For example, if an employer chooses to offer IVF or other ‘family building’ support, it should be made available to all staff. However, it would not be discriminatory to provide women with more paid leave than transwomen, in recognition of the physical impact of fertility treatments on women.
While some will say this is ‘new’ or ‘developing’ law, that is not the case.
In order to remain compliant with the Equality Act 2010 and avoid claims of harassment and discrimination, employers must apply commonsense when considering the purpose for which employee benefits are provided, and the impact of blindly applying a blanket ‘equality rule’.
