The ruling from the Supreme Court is a landmark moment in a long and often controversial debate. There is now legal clarity that protection for sex discrimination under the Equality Act 2010 specifically relates to biological sex, even for those who hold a Gender Recognition Certificate.
It is important to note however Lord Hodge’s observation that commentators should counsel against reading the judgment as a “triumph of one or more groups in society at the expense of the other.” Trans people remain protected from discrimination on the ground of gender reassignment and are also able to claim direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender.
For organisations and employers, this ruling will determine how they choose to interpret and apply the Equality Act 2010 and consider, for instance, the provision of separate spaces based on biological sex. However, they will need to be mindful of Lord Hodge’s observations in ensuring in doing so, this is not considered too narrowly and any changes do not infringe the rights of trans people based on gender reassignment.
The judgment does give clarity in so far as the Equality Act is concerned but is likely to give rise to more questions than it answers in exactly how this will be interpreted in a practical sense and when alleged infringes are considered on a case by case basis.
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