Supreme Court ruling sparks debate on gender

The Supreme Court issued a ruling regarding the definition of ‘woman’, which is set to impact employment law under the Equality Act. Jonathan Mansfield (pictured), an Employment Law partner at Spencer West LLP, commented on the far-reaching consequences of this decision. “This latest ruling highlights inconsistencies in sex based rights in employment and poses some practical issues for employers. Certain rights which are currently available related to sex such as equal pay will only be available based on biological sex. A trans woman, for example, will not have the right to bring an equal pay claim on the basis that she is paid less than a (biological) man."

Mansfield also delineated the existing protections under law, noting, “There is specific protection against discrimination for those who have undergone or propose to undergo gender re-assignment. However, this protection does not extend to all those who would be entitled to apply for a Gender Recognition Certificate where the requirements include a diagnosis or gender dysphoria and having lived in the acquired gender for at least two years among other requirements."

Furthermore, the Supreme Court’s conclusion aligns with the suggestions made by the Equality and Human Rights Commission (EHRC) in 2023, which recommended adopting a biological definition of “sex” within the Equality Act 2010. Mansfield pointed out the potential benefits of clarity in legal protections by stating, “It creates clarity in more areas of legal protection (e.g. data collection) than confusion or disadvantage (e.g. equal pay)."

As society’s understanding of gender and sex continues to evolve, the Supreme Court’s decision has ignited calls for legislative clarification in this complex area, particularly since the EHRC observed that significant changes have occurred regarding protected characteristics since the enactment of the Equality Act 2010.