The UK’s Supreme Court has ruled that “man”, “woman” and “sex” in the Equality Act 2010 refer to sex, not self-ID or paperwork (gender-recognition certificates). This agreed with our legal interpretation. We have published new guidance and are in the process of updating our publications to reflect the judgment. We are also working to provide answers to the questions we're hearing from supporters and the media. We will publish these as soon as possible.

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Sex matters: putting the Supreme Court ruling into practice

Common-sense guidance on what to do now

The UK Supreme Court has clarified that “sex” in the Equality Act 2010 means biological sex. This ruling came as a surprise to the UK Government, the Scottish and Welsh Governments, and every regulator, trade union and umbrella organisation that has got the law wrong for the past 15 years. 

Organisations up and down the country must now review their policies and training to assess and act on the risk that what they currently have is unlawful. If they take a common-sense approach that goes back to basics of ordinary words, they should not go wrong. 

But many have taken bad advice, and a lot of emotive and misinformed claims are circulating already, leading to fear and confusion. Strong, clear guidance from the Equality and Human Rights Commission, and commitment from the UK and devolved governments, are urgently needed. 

To help organisations understand the judgment and to take a legally compliant, common-sense approach, Sex Matters is today publishing a briefing that provides a summary of the judgment and practical advice for organisations.

Practical advice

Our briefing includes 20 practical recommendations to help organisations understand and meet their responsibilities and avoid pitfalls: 

  1. Recognise that organisational policies that are not based on the Equality Act’s definition of sex are likely to result in unlawful conduct. 
  2. Recognise that the goal of “inclusion” means including people as employees, service users, and students, not including them within categories to which they do not belong. 
  3. Use clear language in policy statements, training and data collection. 
  4. Recognise that protected characteristics relate to groups that have different needs and vulnerabilities. Women and “transwomen” are different groups. 
  5. Do not make statements that the organisation disagrees with the Equality Act or the Supreme Court judgment, or that favour or prioritise particular groups. 
  6. Avoid unlawful sex discrimination by setting clear, justified sex-based rules. 
  7. Operate single-sex services on the basis of clear sex-based rules. 
  8. Explain the rules clearly and respectfully to everyone, including transgender people. 
  9. Apply normal standards of workplace and professional conduct to everyone equally.
  10. Consider if any of your policies may result in indirect discrimination, in relation to both sex and gender reassignment.
  11. Do not allow transgender individuals to use opposite-sex facilities and services. 
  12. Do not seek to avoid conflict by removing single-sex spaces altogether and making them all “gender neutral”. 
  13. Treat everyone with respect and ensure you have a robust policy against harassment in relation to all protected characteristics. 
  14. Set clear expectations and do not entertain unreasonable complaints. 
  15. Do not tolerate internal actors advocating non-compliance with the Equality Act. 
  16. Recognise that physical and sexual abuse, exhibitionism and voyeurism must not be tolerated at work, regardless of any protected characteristic the culprit may have.
  17. When you record an employee’s sex, do so accurately and in line with data-protection law. 
  18. Recognise that it is rarely practical to keep someone’s sex private at work, and that it is not reasonable for anyone to expect this. 
  19. Do not collect information on whether individuals hold a gender-recognition certificate (GRC) unless you have identified a lawful purpose for doing so. GRCs are irrelevant to the Equality Act.
  20. Do not take advice from organisations that do not accept the Supreme Court’s ruling. 

Send our briefing to the organisations you know

Now is a good time to write to the largest organisations with which you have a connection, whether as an employee or member, on the board or regulated by them, or as a service user or customer, in order to share our briefing.

Write to the chief executive, chief people officer or general counsel and attach our briefing.

You can adapt this template letter:

Dear [xxxx]

Introduce yourself: I am writing to you as a… / As you know I am a….

I am sure you have heard about the recent Supreme Court judgment clarifying that the meaning of the terms “sex”, “man” and “woman” in the Equality Act relates to biological sex, and not to gender identity or having a gender-recognition certificate (GRC). This judgment protects women’s rights, an issue of particular concern to me.

The judgment makes the law much easier to understand and apply in order to protect everyone’s rights. But it is disappointing to those who have been advocating for an approach based on gender identity. That approach has been found to be wrong in law. Organisational policies that are not based on the Equality Act’s definition of sex as clarified by the Supreme Court are likely to result in unlawful conduct.

I am attaching a briefing from Sex Matters, a human-rights charity that intervened in the case on the winning side, and which was thanked by the Supreme Court for its cogent analysis. The court described this analysis as giving “focus and structure to the argument that ‘sex’, ‘man’ and ‘woman’ should be given a biological meaning”. You can therefore trust that the briefing (which you can also read online at sex-matters.org/supreme-court-advice) and Sex Matters’ recommendations are legally accurate. I hope you find them useful. 

I recognise that it will take some time for [xxxx] to develop a comprehensive response to the judgment. But I hope you can immediately reassure me and others that [xxx]:

1. accepts the Supreme Court judgement and is fully committed to promoting equality, inclusivity, and fairness for all individuals, in line with the Equality Act 2010
2. recognises the fundamental importance of protecting women and men against sex discrimination, and following the law in relation to spaces and services
3. is committed to upholding the protections against discrimination and harassment of transgender people on the basis of gender reassignment in the Equality Act, which do not involve treating people as having changed sex
4. respects freedom of belief and is committed to avoiding belief discrimination (note this does not mean that statements by employees advocating non-compliance with the Equality Act will be tolerated)
5. will urgently review existing policies and practices to ensure that they are compliant with the law, and share the plan and results of this process transparently. 

I would like to follow up by sending you a note of particular issues that I am aware of in relation to your policies. If there is a process or person to best direct this to, please let me know. You can also get in touch with Sex Matters at [email protected] to ask questions or discuss these recommendations. 

Thank you. 

If you have written to an organisation you can tell us about it by emailing [email protected].

Filed under Sex in the Supreme Court   Updates  

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