The legal position on sex-based rights has moved faster than many organisations have been willing to acknowledge. Since the Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers, employers have faced a clearer legal framework on the meaning of sex under the Equality Act 2010. Yet some organisations appear to be treating the judgment as something to monitor rather than something to implement.
The issue is not whether employers support inclusion, but whether their equality, HR, facilities and complaints-handling frameworks reflect the law as it now stands. Good intentions, historic policies, external guidance and fear of difficult conversations will not protect an organisation if its approach creates legal exposure.
What did the Supreme Court decide in For Women Scotland?
The For Women Scotland case arose from Scottish Government guidance under the Gender Representation on Public Boards (Scotland) Act 2018. That guidance included trans women with Gender Recognition Certificates in the definition of “woman” for the purposes of achieving gender balance on public boards.
The Supreme Court unanimously held that the terms “sex”, “man” and “woman” in the Equality Act 2010 refer to biological sex. It also confirmed that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Equality Act 2010. The Scottish Government’s guidance was unlawful because it extended the definition of “woman” beyond biological sex.
That does not remove the protection afforded to trans people under the Equality Act. Gender reassignment remains a protected characteristic. Trans people remain protected from direct and indirect discrimination, harassment and victimisation. The legal point is narrower, though highly significant: a person cannot automatically claim access to rights, protections or spaces created for the opposite biological sex under the protected characteristic of sex.
For employers, that matters in practice. It affects single-sex facilities, positive action measures, data collection, diversity targets, harassment risk, protected belief issues and how managers respond when employees raise concerns.
Why “waiting for further guidance” is becoming a weak defence
Many employers have said they are waiting for the revised EHRC code or further official guidance before changing workplace policies. That may feel cautious. In legal risk terms, it is increasingly difficult to justify.
The Supreme Court has already clarified the law. Guidance can help organisations apply the law, and revised codes can provide useful detail. They do not suspend the duty to comply with the law in the meantime.
A recent report on the implementation of the For Women Scotland judgement in financial services found that several large organisations had either failed to explain their policy position clearly, said they were waiting for revised EHRC guidance, or continued with approaches based on gender self-identification after the Supreme Court judgment. The report found that nine of the organisations contacted said they were waiting for publication of the revised EHRC code of practice before deciding whether to make changes.
That kind of delay is risky because tribunals do not usually ask whether a policy was well-intentioned, popular internally or aligned with previous external guidance. They ask whether it complied with the law, whether the employer considered the rights affected, whether the response was proportionate and whether the employer can evidence its decision-making. In any other area of compliance, a Supreme Court judgment would usually trigger a structured review of policies, procedures, training and communications. Treating equality law differently is hard to defend.
Workplace facilities: where the risk becomes practical
The most immediate issue is single-sex facilities. Under the Workplace (Health, Safety and Welfare) Regulations 1992, most workplaces must provide suitable and sufficient toilet facilities, and this will often require separate facilities for men and women. Changing and washing facilities may also need to be provided separately where required.
Following the Supreme Court decision, employers should be clear that where facilities are described as “male”, “female”, “men’s” or “women’s”, those terms must be understood by reference to biological sex. Policies that allow employees to use facilities based solely on gender identity or gender expression may now create significant risk.
That does not mean every workplace must have only male and female facilities. Single-user, fully enclosed unisex facilities can play an important role, particularly in supporting privacy, dignity and inclusion for a range of employees. The compliance problem arises when employers describe facilities as single-sex while operating them on a self-identification basis.
This creates several overlapping risks:
- Breach of workplace facilities obligations if provision is not genuinely single-sex where single-sex provision is required.
- Sex discrimination or harassment claims from women who say their dignity, privacy or working environment has been compromised.
- Gender reassignment discrimination claims if trans employees are treated unfairly, denied reasonable support or exposed to hostility.
- Religion or belief claims where employees with gender-critical beliefs, religious modesty concerns or safeguarding concerns are treated as irrational, hateful or disruptive for raising lawful concerns.
- Victimisation claims if employees are penalised for making complaints or supporting colleagues who do.
The legal answer is not to prioritise one protected characteristic and ignore the others. The Equality Act requires a balancing exercise.
Protected belief: employers must avoid overcorrecting
This area also interacts with protected belief. Gender-critical beliefs, including the belief that sex is biological and immutable, can be protected under the Equality Act. That does not give employees a licence to harass colleagues or behave unlawfully. It does mean employers must be careful not to discipline employees merely because they hold or express protected beliefs in a lawful and proportionate way.
The Higgs v Farmor’s School decision is important here. The Court of Appeal held that dismissing an employee for expressing protected beliefs outside work was unlawful and disproportionate in the circumstances. Employers must distinguish between holding or expressing a protected belief and conduct that actually amounts to harassment or discrimination. Disciplinary action must be proportionate and based on concrete evidence, rather than speculative reputational concern.
For employers, this means two mistakes must be avoided. The first is allowing unlawful or degrading conduct under the banner of belief. The second is assuming that disagreement with a gender identity policy is inherently hateful, unsafe or disciplinary. That assumption is precisely where employers can turn an employee relations issue into a tribunal claim.
If an employee says, for example, that they believe single-sex facilities should be based on biological sex, that is not in itself misconduct. If an employee raises a privacy, dignity, safeguarding or religious modesty concern, that complaint must be handled seriously. A manager who responds by telling the employee to “broaden their mindset”, suggesting they are bigoted, or treating the complaint as a disciplinary issue may increase the employer’s exposure.
LS v NHS England: good intentions are not a compliance defence
The emerging tribunal risk is illustrated by LS v NHS England, which should be treated as a warning shot for employers still relying on historic guidance, internal consensus or broad appeals to inclusion rather than a current assessment of the law.
The significance of the case is that the employer’s approach was presented as being motivated by inclusion, dignity and a belief that it was acting lawfully. However, discrimination law is not concerned only with intention. It is also concerned with effect.
A policy may be designed to support one protected group, yet still create legal exposure if its practical operation infringes the rights of another. If the effect of a policy is to create an intimidating, hostile, degrading, humiliating or offensive environment for women, or to treat objections based on sex, privacy, religious modesty or protected belief as inherently unreasonable, the employer cannot assume that good intentions will rescue the position.
The judgment also soundly rejects a common institutional defence: that employers can rely on external guidance or “good practice” advice as a shield. The judgment specifically noted that reliance on contemporaneous guidance cannot justify an incorrect interpretation of the law. Employers must take their own legal advice and ensure their policies apply the law correctly.
The risk of outside advice from pressure groups
That is a major compliance point. External bodies, staff networks, campaign groups and sector guidance may all have a role in shaping policy discussions but they are not substitutes for statutory interpretation. An employer cannot outsource its Equality Act obligations to Stonewall, an employee resource group, a historic training slide deck or a generalised reputational concern.
Neither can employers dismiss objections to self-identification policies for sex as necessarily irrational, hostile or fringe. An employee who raises concerns about single-sex facilities is not automatically being difficult, discriminatory or “hypersensitive”. They may be raising a legitimate complaint about privacy, dignity, sex-based rights, religious belief or workplace safety. If managers respond by dismissing those concerns, reframing them as prejudice, or pressuring employees to accept a policy without proper consideration, the organisation may increase its own liability.
Employers sometimes argue that because single-sex facilities cannot be policed perfectly, there is little point in having a sex-based policy at all. That is a weak argument. Many workplace policies cannot be guaranteed in every individual instance. That does not remove the employer’s obligation to take reasonable steps to secure compliance. Policies can be communicated, breaches can be made disciplinary matters, visitors can be required to follow site rules, and managers can be trained to respond appropriately.
Perhaps most significantly, the judgment in LS v NHS England explicitly states that there is no express legal right for a transgender person to use single-sex facilities of their gender identity under the Equality Act or the Workplace Regulations. That cuts directly across the assumption many organisations adopted before For Women Scotland: that identity-based access was already a settled legal entitlement. It was not.
For employers, guidance, aspiration and law are not the same thing. A policy can be compassionate in aim and still unlawful in effect. A manager can believe they are protecting inclusion and still mishandle a complaint. A business can follow outdated external advice and still be responsible for the legal consequences.
The compliance message remains that: after For Women Scotland, employers that continue to operate pre-existing self-ID policies without review are making an active risk decision, not a neutral one.
