Single-sex spaces after the Supreme Court ruling

The UK Supreme Court’s recent ruling clarifying that the legal definition of sex in anti-discrimination law refers to biological sex has reignited debate around the provision of single-sex spaces. From schools and leisure centres to healthcare and retail, organisations are now seeking clearer guidance on how to lawfully manage changing rooms, toilets, and other gender-specific facilities.

Lucy Hudson from ARAG Law explores what this means for service providers and how legal advice can help navigate this sensitive and evolving area.

What does the Supreme Court ruling mean for the legal definition of sex in service provision under the Equality Act 2010?

The Supreme Court has made a recent ruling providing clarification on the legal definition of sex under Equality Act 2010. This ruling states that “Sex” refers to biological sex at birth. As a result of this, transgender individuals would fall under their sex at birth for the purposes of “sex” under the Equality Act 2010. This ruling has not changed the law but has just provided clarification on how it should be interpreted. Furthermore, this does not remove any legal protections for transgender individuals under the Equality Act 2010.

This ruling will have an impact on organisations who provide single-sex services and spaces. They will need to ensure that the policies in place reflect the clarified legal definition of “Sex.” The Equality and Human Rights Commission (EHRC) are in the process of providing further guidance following the ruling, which will go in front of Government before being released.

Can organisations lawfully exclude transgender individuals from single-sex spaces, and under what conditions?

It is possible to lawfully exclude transgender individuals from single-sex spaces, but there are certain conditions under the Equality Act 2010 to monitor the implication of this. The exclusion must be proportionate and a means of achieving a legitimate aim. Legitimate aims could include protecting privacy and dignity (especially in intimate settings such as toilets, changing rooms etc), any safety concerns, to ensure fairness with competitive sports, purpose of preventing trauma (for example in domestic abuse refuges), any religious or cultural requirements. This list is non-exhaustive, and if you are unclear whether your aim would be deemed legitimate, seeking legal advice may provide further clarification.

When considering proportionality of the decision to exclude, the action must be the least discriminatory means of achieving the aim. The circumstances must be considered in each case, as a blanket ban could run the risk of being unlawful.

How should schools and public bodies respond to parental concerns about mixed-sex changing areas?

Understandably, there may be some confusion and concerns raised by parents as a result of the Supreme Court Ruling, and the impact this has on their children. When these concerns from parents are raised with the school or public body, it is best to ensure they are taken seriously and addressed fully to avoid any further confusion or escalation of a complaint. When responding to the concern raised, it is beneficial to clarify the legal position of the school. The EHRC has given guidance that Schools should provide single sex toilets for boys and girls over 8 and single sex changing facilities for boys and girls over 11.

Additionally, you can explain how this is implemented within your school/ public body, and offer to send a copy of the changing room/ single-sex space policy you have in place, and reassuring parents that it is in line with legal requirements. Schools also have the to ensure pupils are safeguarded, and this includes ensuring transgender pupils are not left without access to suitable facilities. Therefore, some consideration should be given as to whether additional facilities should be made available to ensure transgender pupils are safeguarded.

What are the legal risks of misinterpreting or misapplying guidance on single-sex spaces?

There are a couple legal risks if the guidance on single-sex spaces is misinterpreted and mis-applied.

The first being Regulatory Enforcement by the Equality and Human Rights Commission (EHRC). This would be if the policies in place do not comply with the recent Supreme Court ruling, and guidance. There is also a risk that the policy deemed unlawful on this basis too. Usually, the Equality and Human Rights Commission would begin with writing to the relevant public body, advising them the revision is required on the wording of the policy.

Another risk that needs to be considered is discrimination. Gender reassignment is one of the nine protected characteristics under the Equality Act 2010, which protects transgender individuals from direct and indirect discrimination, harassment and victimisation, and this applies to both the education sector and public bodies among other areas. Therefore, when interpreting and applying the guidance, it must be done so without discriminating these individuals. Even though it is possible to exclude transgender individuals, under certain circumstances, it must be carefully justified and proportionate in the circumstances, if you are unsure, seeking legal advice is highly recommended.

How can businesses ensure their policies comply with the Equality Act 2010 while respecting all protected characteristics?

The first step following this Supreme Court ruling is to review and amend all policies you have which relate to Equality, Diversity and Inclusion, single-sex spaces etc. It is worth checking the wording reflects the legal definition of sex, and the clarification provided by the Supreme Court on this. Some points to consider include not suggesting an automatic legal right to access single-sex spaces and/or services according to self-identified gender. An option is to offer alternative spaces for transgender individuals, which may include a mixed-sex space, to ensure that they still have the ability to use the space. It is important to read through all guidance provided by the Equality and Human Rights Commission and keep up to date as further guidance is released, to ensure your business is fully compliant with the Equality Act 2010, whilst avoiding discriminatory acts. If there is any doubt, seeking further legal advice to confirm wording of policies and implication is always beneficial.

What practical steps should employers and service providers take to update internal policies and staff training?

Following the Supreme Court ruling, there are some practical steps which should be taken to ensure policies are compliant, and staff are aware of the changes, and implications of them.

Initially, companies should be reading over guidance provided by the Equality and Human Rights Commission on the implications of the Supreme Court ruling and keeping an eye out as further guidance is released. Following this, they should be checking over the current policies which they have in place, which relate to single-sex spaces, services and Equality, Inclusion and Diversity, to ensure that they do indeed comply with the ruling. If there is any uncertainty on compliance of current policies, or alterations required to make them compliant, seeking further legal advice is recommended to avoid any risks of discrimination or non-compliance with Equality Act 2010.

In relation to staff, providing mandatory training which focuses on Equality law, the Supreme Court ruling, and the implications of this can be beneficial to ensure they fully understand the implications on themselves and the business. Furthermore, providing any further explanation on policy updates if there is any uncertainty among staff.