In our International HR Day webinar, Navigating protected beliefs and complex DEI issues, we looked at some of the most difficult questions now facing HR, legal and compliance teams. The discussion covered the Equality Act 2010, protected belief, positive action, antisemitism, Islamophobia, menopause at work, and the practical challenge of managing competing rights in the workplace. The focus throughout was not politics or activism, but how employers can reduce the risk of grievance, discrimination claims and employment tribunal exposure while maintaining dignity and fairness at work.
One of the most significant parts of the discussion concerned the relationship between transgender rights and sex-based rights after the Supreme Court’s decision in For Women Scotland. We explained that the ruling confirmed that “sex”, “man” and “woman” in the Equality Act mean biological sex, and that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Act. We also stressed that this does not remove protection for transgender people. Gender reassignment remains a protected characteristic, and employers must continue to prevent discrimination, harassment and victimisation against trans employees.
The compliance issue is how those protections are balanced. Policies that refer to women, female employees, positive action for women, women-only services or single-sex facilities must now be reviewed through the lens of biological sex. At the same time, employers should consider how to provide respectful and practical support for trans employees, including clear policies, alternative provision where appropriate and properly trained managers.
What does the updated EHRC Code of Practice say?
Since the webinar, the updated EHRC statutory Code of Practice for services, public functions and associations has reinforced the Supreme Court’s decision last year. The Code states that, for the purposes of the Equality Act, a person’s sex remains their biological sex whether they have a GRC or not, while also confirming that trans people remain protected from discrimination because of gender reassignment.
The Code is focused on services, public functions and associations rather than employment directly, but some employers who carry out services for the public or public functions may be covered. However, its treatment of single-sex services is highly relevant to organisational risk. The Code explains that if a provider admits trans people to a service intended for the opposite sex, it can no longer rely on the single-sex exceptions in the same way. It also warns that a service provided to women and trans women, while excluding men, is not a single-sex service under the Equality Act and may create sex discrimination or harassment risk for women.
This closely reflects the point made in the webinar: where workplace policies, facilities or inclusion initiatives refer to women, employers need to be clear whether they mean biological sex, gender identity or both. Where facilities are intended to be sex-separated, employers should ensure that the policy, signage, manager guidance and practical arrangements actually reflect that. Mixed-sex or fully private unisex provision can form part of a lawful and inclusive approach, but it should not be used to obscure whether single-sex provision is genuinely being maintained.
Listen again to the webinar.
We also received a large number of questions during the webinar, and will answer them here.
If there are limited facilities e.g. toilets, how do you balance the need for single-sex spaces with the need for trans people to have access to appropriate spaces?
The starting point is that employers should not treat this as a choice between single-sex provision and appropriate provision for trans employees. Both duties have to be considered.
Where workplace facilities are limited, the organisation should first identify what the law requires. If toilets, changing rooms or washing facilities are provided as single-sex spaces, those spaces need to be genuinely sex-separated. Following For Women Scotland, that means based on biological sex, not gender identity.
At the same time, trans employees remain protected under the Equality Act through the protected characteristic of gender reassignment. They should not be left without safe, dignified and practical access to facilities. So the employer should look at the physical estate and consider what reasonable practical options are available. That might include converting one facility into a fully private, lockable, single-user unisex toilet, improving access to an existing accessible or gender-neutral facility where appropriate, changing signage, adjusting allocation of facilities, or planning future refurbishments with privacy and lawful provision in mind.
The important compliance point is to document the balancing exercise. What facilities exist? What does the Workplace Regulations position require? Which facilities are genuinely single-sex? What alternative provision is available? Is it safe, dignified and reasonably accessible? Have the needs of women, men, trans employees, disabled employees and employees with religious modesty concerns all been considered?
Limited facilities do not remove the need for single-sex provision where required. They also do not justify treating trans employees poorly. The legally safer approach is clear classification of spaces, practical alternative provision where possible, and trained managers who can handle concerns respectfully without dismissing them as prejudice or allowing the issue to become a grievance or tribunal claim.
How should employers respond where a trans employee feels that being asked to use a separate facility, rather than the facility corresponding with their gender identity, is discriminatory?
This needs to be handled carefully, because the concern should not be dismissed. A trans employee remains protected under the Equality Act 2010 under the protected characteristic of gender reassignment, and an employer must ensure they are not subjected to harassment, victimisation or less favourable treatment because they are trans.
However, the For Women Scotland case clarified the legal position is that sex in the Equality Act means biological sex. That means a workplace policy can lawfully maintain genuinely single-sex facilities on the basis of biological sex, provided the approach is justified, proportionate and applied respectfully. A trans employee may feel excluded by being asked to use a separate facility, and that concern should be listened to, yet it does not automatically mean the employer’s policy is unlawful discrimination.
The compliance task is to balance the rights and needs of everyone affected. That includes trans employees, women, men, disabled employees, employees with religious modesty concerns, and employees who hold protected beliefs about sex. The employer should consider whether the alternative facility is genuinely appropriate: is it safe, private, reasonably accessible, dignified, and not presented as a punishment or embarrassment?
A separate facility should not mean an inferior facility. It should not be remote, unsafe, poorly maintained, or require the employee to ask permission every time they need to use it. If that is the reality, the employer may be creating avoidable legal risk.
The safest approach is to explain the policy calmly, avoid personalising the issue, document the balancing exercise, and make clear that the organisation is seeking to comply with the law while treating all employees with dignity. Managers should be trained not to frame this as one employee “causing a problem”, nor tell other employees that their sex-based concerns are discriminatory simply because they raise them.
So the answer is: take the concern seriously, assess the provision carefully, make reasonable practical arrangements where possible, and ensure the policy is based on law rather than assumption, pressure or discomfort.
Does the protected characteristic of gender reassignment depend on legal certification, or can it apply where someone self-identifies as a trans woman or trans man?
No, a person does not need a Gender Recognition Certificate to be protected under the Equality Act’s gender reassignment provisions.
The Equality Act protects someone who is proposing to undergo, is undergoing, or has undergone a process, or part of a process, to reassign their gender by changing their appearance or other attributes of their gender. That protection does not require medical treatment, surgery, a formal diagnosis or a Gender Recognition Certificate. The EHRC Code also confirms that protection can apply at any stage of transition, including where someone has started but not completed that process.
So yes, in practical terms, someone who says they are a trans woman or trans man may well be protected under gender reassignment, depending on the circumstances. It is not just about paperwork.
However, there is an important distinction. Being protected under gender reassignment does not mean that person’s sex changes for the purposes of the Equality Act. In the Equality Act 2010, sex means biological sex. So a person may be protected from discrimination because they are trans, while still not being treated as female or male for Equality Act provisions that specifically depend on biological sex.
For employers, the compliance point is to separate the two questions:
Is this person protected from discrimination because of gender reassignment? Very possibly, and they should be treated with dignity and respect.
Does that protection automatically give access to rights, spaces or policies reserved for the opposite biological sex? No.
How should employers manage situations where an employee is preaching or promoting their religion at work?
The starting point is that religion and belief are protected under the Equality Act 2010. Employees must not be treated less favourably simply because they hold religious beliefs, express them appropriately, or discuss them in ordinary workplace conversation.
However, protection for religion or belief does not give an employee an unrestricted right to preach, proselytise or put pressure on colleagues at work. Employers are entitled to maintain a respectful, professional environment and to prevent conduct that may amount to harassment, intimidation, unwanted pressure or disruption.
The key compliance distinction is between expression and conduct. An employee saying “my faith is important to me” or answering a colleague’s question about their religion is very different from repeatedly trying to convert colleagues, targeting particular employees, criticising others’ beliefs or lifestyles, or continuing after someone has made clear the conversation is unwelcome.
A legally defensible approach is to apply the same standard to all beliefs and viewpoints. The issue should not be the religion itself. The issue should be the impact of the behaviour in the workplace: was it unwanted, repeated, targeted, disruptive, or capable of creating a hostile or offensive environment?
Managers should usually start with a proportionate response. That might mean a private conversation explaining that the employee is entitled to their beliefs, but should not impose them on colleagues or continue religious discussions where they are unwelcome. If the conduct continues, it may become a disciplinary matter.
The safest policy position is to make clear that employees may hold and appropriately express religious or philosophical beliefs, while all staff are expected to respect boundaries, avoid unwanted personal pressure, and maintain a workplace where colleagues of all religions and none can work comfortably.
Could offering overtime only on a Saturday amount to indirect discrimination if a Jewish employee cannot work on Saturdays for religious reasons, even though the opportunity is technically open to everyone?
This is a good example of how indirect discrimination can arise. The overtime opportunity may be open to everyone on paper, so there may be no obvious direct discrimination. However, if the only opportunity to earn additional pay is on a Saturday, that could put Jewish employees who observe Shabbat at a particular disadvantage.
The legal question is then whether the employer can justify the arrangement as a proportionate means of achieving a legitimate aim. For example, the employer may have a genuine operational need for Saturday cover. That may be a legitimate aim. But the employer should still ask whether there are less discriminatory ways to achieve it.
That might include rotating overtime opportunities, offering some overtime on Sundays or weekdays, allowing employees to register interest for future shifts, sharing weekend work more fairly, or offering alternative additional hours where possible. The employer does not necessarily have to guarantee identical outcomes for everyone, but it should be able to show that it considered the impact and looked for reasonable alternatives.
From a compliance perspective, the issue is not simply “everyone was allowed to apply.” That is often where employers go wrong. A neutral rule or opportunity can still be discriminatory if it disadvantages a group with a protected characteristic.
So the defensible approach is to assess the pattern, consult where appropriate, document the business reason, consider alternatives, and avoid repeatedly structuring paid opportunities in a way that repeatedly excludes the same protected group.
How can gender reassignment still be protected from indirect discrimination if a Gender Recognition Certificate does not change a person’s sex for the purposes of the Equality Act?
These are two separate legal points, and it is important not to collapse them.
Following For Women Scotland, the law was clarified to mean that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Equality Act. So where the Act refers to sex, woman or man, that means biological sex.
But gender reassignment remains a separate protected characteristic under the Equality Act. That means a trans person can still be protected from direct discrimination, indirect discrimination, harassment and victimisation because they are proposing to undergo, are undergoing, or have undergone gender reassignment.
Indirect discrimination can arise where an apparently neutral policy puts people with the protected characteristic of gender reassignment at a particular disadvantage, unless the employer can justify it as a proportionate means of achieving a legitimate aim.
For example, a workplace rule that requires all employees to use facilities based on biological sex may disadvantage some trans employees. That does not automatically make the rule unlawful. The employer may be able to justify sex-separated facilities by reference to privacy, dignity, safety, religious modesty, the needs of women and compliance with workplace regulations. But the employer should still consider the impact on trans employees and whether there are practical alternatives, such as fully private, single-user facilities.
So the legal position is not that gender reassignment protection disappears. It is that gender reassignment protection does not rewrite sex-based provisions in the Equality Act.
For employers, the compliance task is to ask two questions:
Is the sex-based rule lawful and justified?
Have we considered and reduced the disadvantage to trans employees as far as reasonably possible?
That means clear policy wording, a documented proportionality assessment, respectful communication and practical provision where available.
If policies based on self-identification alone may increase legal risk, how should organisations monitor or manage this in practice?
The first point is that organisations should not be monitoring people’s identity in a way that is intrusive, excessive or inconsistent with data protection law. This is not about asking employees for medical information, a Gender Recognition Certificate or proof of status.
The better compliance approach is to avoid self-ID policies for access to single-sex spaces in the first place. Following the clarification of the law in For Women Scotland, policies that refer to men, women, male, female or single-sex provision should be based on biological sex. If an organisation operates facilities or services on a self-identification basis while still describing them as single-sex, that is where the legal risk arises.
So the monitoring should focus on the policy and the workplace environment, not on policing individuals. Organisations should review:
- whether policy wording uses sex and gender identity interchangeably
- whether facilities labelled male or female are genuinely sex-separated
- whether alternative private provision is available where appropriate
- whether complaints or concerns are being raised and how they are handled
- whether managers are applying the policy consistently and respectfully
- whether staff understand the difference between sex, gender reassignment and gender identity
The organisation should also have a clear route for employees to raise concerns about privacy, dignity, harassment, religious modesty or protected belief without fear of being treated as hostile or discriminatory. Those concerns should be logged, assessed and escalated where needed.
From a compliance perspective, the safest answer is not to create a system of surveillance. It is to have legally clear policies, practical facility arrangements, trained managers and documented decision-making. Self-ID should not be used as the basis for single-sex spaces, and organisations should monitor whether their actual practice matches their written policy.
Does excluding trans women from women-only measures have to be justified as proportionate?
Yes. The legally safer framing is that sex-based rules should not be presented as a crude “automatic exclusion” of trans people. They should be understood as rules designed to achieve a legitimate sex-based aim, with the exclusion of those who are not biologically female being a consequence of that aim.
The For Women Scotland case is a useful example. The rule at issue concerned improving the representation of women on public boards. The purpose of that rule was to address the underrepresentation of women as a sex class. Once the Supreme Court confirmed that “woman” in the Equality Act means biological woman, it followed that including biological males within that category would undermine the purpose of the measure.
So the justification is not simply “exclude trans women”. The justification is: this measure exists to improve sex representation for women, meaning biological females. Excluding biological males from that measure is therefore connected to the legitimate aim and is likely to be proportionate.
That same logic matters for employers. If a policy, target, programme or facility is genuinely sex-based, the organisation should be able to explain the legitimate aim. That might be improving female representation, protecting privacy and dignity, meeting the needs of a sex-based group, or complying with workplace regulations.
The compliance point is to document the reasoning. Employers should be clear what the policy is trying to achieve, why sex matters to that aim, whether the approach is proportionate, and what provision or support is available for people with other protected characteristics, including gender reassignment.
So the answer is not “automatic exclusion” in the abstract. It is lawful sex-based distinction, justified by the aim of the policy.
How should employers approach trans awareness training while also respecting gender-critical beliefs? Is the key issue tone, balance and whether training is compulsory?
Yes, tone and balance are central, but the issue is wider than whether training is compulsory.
Employers can provide trans awareness training. In many workplaces, it may be a sensible way to reduce harassment risk, improve understanding and ensure trans employees are treated with dignity. Gender reassignment is a protected characteristic, and employers have a legitimate interest in preventing discrimination, harassment and victimisation.
The risk comes when awareness training moves from explaining legal obligations and respectful workplace behaviour into requiring employees to affirm contested beliefs. For example, training that says employees must believe that gender identity overrides biological sex, or that gender-critical views are inherently hateful, would be wrong and legally risky.
Gender-critical belief can itself be protected under the Equality Act. Employees do not have a right to harass trans colleagues, misbehave at work or refuse reasonable standards of courtesy. But they also should not be compelled to adopt a belief they do not hold, or be treated as discriminatory merely because they believe sex is biological.
So the safest approach is to make the training legally grounded and behaviour-focused. It should cover dignity, anti-harassment, confidentiality, appropriate language, privacy, and how to raise concerns respectfully. It should avoid ideological statements presented as mandatory belief.
Whether the training is compulsory depends on its content and purpose. Compulsory compliance training on equality, harassment and respectful conduct is generally defensible. Compulsory advocacy-style sessions that requires employees to affirm contested propositions is much harder to defend.
A good compliance test is: are we training people on workplace standards and legal duties, or are we asking them to agree with a particular worldview?
The practical answer is to keep the training balanced, legally accurate, and focused on conduct. Respect trans employees. Respect protected beliefs. Make clear that everyone is entitled to dignity at work, and that disagreement must not become harassment in either direction.
