The Supreme Court Judgement on the Equality Act – What Does This Mean For Employers?
A recent high-profile decision in the Supreme Court has led to much discussion regarding sex as defined by the Equality Act, and gender. This has generated a lot of press coverage, including many statements and assertions that do not necessarily follow from this judgement. This particularly relates to the provision of toilet facilities.
In For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, the Supreme Court held that the definitions of “woman”, “man”, and “sex” in the Equality Act refer to biological sex. This means that the definition of “woman” in the Equality Act excludes trans women, including those who hold a gender recognition certificate. Trans people do however remain protected from discrimination under the protected characteristic of gender reassignment, or in relation to their biological sex (or perceived biological sex).
But what does this mean in practice? The first important point to note is that this judgement only affects the definitions in the Equality Act, and not those in other legislation.
The provision of toilets and changing facilities in the workplace is not contained in the Equality Act, but in the Workplace (Health, Safety and Welfare) Regulations (1992). Employers must provide toilets for all their staff, but there is no immediate legal requirement for workplaces to insist that trans staff or customers use the toilet that corresponds with the sex they were assigned at birth.
If employers wish to offer single-sex services based on sex recorded at birth, this could be justified if it is a “proportionate means of achieving a legitimate aim”. But if they decide to introduce a policy where trans people are not permitted to use the toilet that corresponds to their gender identity, they should consider the pitfalls.
For example, if staff are asked to use the toilet that corresponds to their sex assigned at birth, an employee who is trans but is not “out” at work would “out” themselves. This could potentially be an infringement of that employee’s right to privacy under Article 8 of the Human Rights Act, and could leave the business open to legal challenge.
The Supreme Court judgement is clear that trans people remain protected from discrimination under the Equality Act due to their protected characteristic of gender reassignment. But this may at times intersect with the rights of other staff to express their belief that people cannot change their sex.
Holding gender-critical views, including the belief that people cannot change their sex, has been held to be a ‘protected belief’ under the Equality Act. However, employers must ensure that all their staff are protected. If a religious person believed that homosexuality is a sin, this belief would be protected under the Equality Act, but they would not be allowed to discriminate against or harass a gay colleague because of this belief. Similarly, someone with gender-critical views would not be allowed to discriminate against or harass a trans colleague because of those beliefs.
So where does this leave an employer who wants to be sure they are protecting everyone’s rights?
Employers should ensure that all of their employees are protected and feel safe at work. To balance the access to single-sex spaces for those who want them, against the right for trans people to access the space that reflects who they are and where is safe for them, unisex toilets are undoubtedly the safest option. This is provided that they are enclosed and protect everyone’s privacy. In fact, in the last few years unisex toilets have become very much in vogue, particularly in our clubs and nightclubs.
Employers and employees need to be clear on what this judgement means when it comes to their rights and responsibilities under the Equality Act (2010).
For further advice about how to fairly apply the Equality Act in the workplace, please contact our expert Employment Law Team on 01273 609911, or email info@ms-solicitors.co.uk.
