Leisure Sector Update: Practical implications of the UK Supreme Court ruling on the definition of 'woman' and 'sex'

Welcome to the Harrison Drury Leisure Sector Newsletter. Your regular update on legal developments across the leisure, hospitality and tourism sector. Our aim is to keep you informed, prepared and ahead of the curve with insights tailored to support you and your business.

The UK Supreme Court has ruled that the terms ‘woman’ and ‘sex’ in the Equality Act 2010 refer to a ‘biological woman’ and ‘biological sex’, while reiterating that trans people are protected from discrimination.

This means that if someone identifies as transgender, they do not change sex for the purposes of the Equality Act, even if they have a Gender Recognition Certificate.

The Equality and Human Rights Commission has published an interim update on the practical implications of the judgment (An interim update on the practical implications of the UK Supreme Court judgment | EHRC).

The interim guidance is brief but makes it clear that:

• it is compulsory for workplaces and services open to the public to provide sufficient single-sex toilets and changing and washing facilities where required;
• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities;
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities;
• where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use;
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided;
• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men.

However, the guidance does not address how to balance these requirements with the rights of trans people not to experience gender reassignment discrimination or harassment, or offer any practical guidance as to how to ensure trans people have facilities to use.

Awareness of this issue is at a high following the significant media coverage the judgment received. It is important to approach the issue in a sensitive manner while ensuring compliance with your policies and procedures, and the law.

Further guidance is awaited together with an updated Code of Practice (which is expected to be presented to the Government for approval in June).

In the meantime, you should review the current arrangements you have in place and consider any practical adaptations required in light of the interim guidance. Redesignation of existing facilities could be an immediate, short-term way to create mixed sex facilities in the short term.  Policy updates and communications about any changes will also be critical, and these will need to be kept under review as we get further clarity on the implications of this decision.

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