Legislation
The definition of gender (Equality Act)
Date
Effective now
Summary
In the news everywhere, The Supreme Court was asked to consider the definition of gender in the Equality Act (EqA) and it has finally delivered its verdict.
By reviewing the Sex Discrimination Act 1975, the first legislation to protect against sex discrimination, they found that it was drafted based on the words “man” and “woman” referring to biological sex.
At no stage during any of its amendments or updates was it found that this meaning had been modified. Their judgment was based on utilising the ordinary language of “man” and “woman” and as such, it could only be Interpreted as referring to biological sex.
The Supreme Court was clear that the meaning of “sex” and “woman” must be consistent throughout the EqA and cannot have one meaning in one section and another in a different section.
To allow this would render the legislation impracticable and unfit for purpose. We therefore appear to have judicial clarity following many years of uncertainty and hesitation regarding this topic.
It provides welcome relief for employers, who were ordinarily required to provide a balancing act between the disparity in rights and to determine what is correct, without having the legal standing to do so.
It should be mentioned, as it was emphasised in the judgment, that this does not represent an erosion of the rights afforded to trans people.
They are protected from discrimination on the ground of gender reassignment. Further, they are also able to invoke the provision on direct discrimination and harassment, and indirect discrimination based on sex.
A trans woman can claim sex discrimination because she is perceived to be a woman – without the need to discuss the definition of sex.
The best way forward is for employers to continue ensuring that they foster a culture of inclusivity. By speaking to employees and ensuring that there are open channels of communication, where dialogues can occur in a respectful manner, then they are less likely to encounter any issues.
Employment Law guide
April – May 2025 edition Do you know when the latest complex legislation changes come into effect? And are you aware of the work required to ensure your business is fully compliant?…