The case of For Women Scotland v The Scottish Ministers concerned the meaning of the terms “man”, “woman” and “sex” in the Equality Act 2010 (EqA) in light of the Gender Recognition Act 2004. It decided that these terms refer to biological sex. This means that if someone identifies as trans, they do not change sex for the purposes of the EqA, even if they have a Gender Recognition Certificate.
The decision is an important development in the entrenched conflict between those on either side of the trans rights and gender critical debate. Unless future legislation changes the position, the judgment puts the meaning of sex in the EqA in unequivocal terms. Sex = biological sex.
So what does this mean for UK film and TV companies, who are employers or engage freelance cast and crew on productions? We’ve identified some key areas where this judgment will have an on-the-ground impact for clients:
Employers need to consider their provision of workplace facilities, in particular toilets and changing areas. Under health and safety law, employers have to provide separate toilet facilities for men and women. Unless toilets are individual lockable rooms with wash basins (not just cubicles) then they ought to be single sex and reserved for those of biological sex. This could be a change of policy for production companies, as the prevailing approach has been to allow staff to use facilities in line with the sex they identify as. To continue permitting this could give grounds for claims of discrimination or harassment based on sex.
Companies will need to consider how to communicate or even enforce any policy changes around facilities with sensitivity towards all those impacted, and where possible identify solutions to provide compliant gender neutral ‘third’ spaces. This is not an easy task for those in the film and TV sectors, where the physical workplace is subject to change. Options for practical solutions may have to be assessed for each production or shooting location on a case by case basis.
The Supreme Court decision could have a real impact on some members of the workplace. Companies should consider steps which could be taken to support staff, through people team and wellbeing services. They might also consider reiterating a commitment to EDI, or even introducing improved provision in this area. Employers need to be alive to the possibility of complaints or even claims when contemplating policy changes and approach the issue with care, appreciating the differing views which may exist whilst ensuring inclusion is not compromised.
Protection under the EqA against discrimination or harassment because of or related to the protected characteristic of gender reassignment, or a person’s perceived sex, has not changed. In this context gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign sex; it does not require a Gender Recognition Certificate or gender affirming medical treatment. Companies must consider how to balance the requirement to provide single sex facilities (bearing in mind the risk of sex discrimination claims if they are not compliant) with the rights of trans people not to experience gender reassignment discrimination at work.
The decision undoubtedly leaves employers and companies navigating a tricky emotive issue with no perfect answers on best approach. Establishing a culture of respect in the workplace and ‘disagreeing well’ will be important, with acknowledgment that conflicting opinions will exist in diverse workplaces. This can be done through relevant policies, defined values or codes of conduct, with training and role modelling behaviours also being key. Those in management or people teams will need to ensure an even handed approach when dealing with clash of opinions between staff or the enforcement of any changes.
The Supreme Court decision did not provide all the answers for employers managing challenging situations where they encounter a clash of rights based on different protected characteristics. The Equality and Human Rights Commission is consulting to produce detailed advice through an updated Code of Practice, expected after June this year. In the meantime, concerned employers should consider seeking legal advice on any significant changes to policy or approach. It is important to be mindful of the complexity and emotion in this debate, and to listen to employee representations and lobby groups. However ultimately employers must take workplace and policy decisions with the clear legal judgment from the Supreme Court in mind.
Lucy works with a wide range of businesses, from startups to multinationals, and has particular industry experience advising companies in the film, TV and entertainment sectors. She additionally supports individuals at a senior level on workplace complaints and exit arrangements.
Lucy frequently handles complex disputes and employee relations issues, including sensitive grievance and disciplinary processes. As well as supporting employers with such matters, Lucy manages complex employment tribunal claims and has acted as an independent investigator for employers on several high level disciplinaries. Her experience allows her to offer a full range of employment legal support to a business, from day to day queries and providing training, handbooks and policies, through to strategic advice on redundancies, restructuring or business sales.
Alongside her work for the firm, Lucy is a member of the Employment Lawyers Association (ELA). She has sat on ELA working parties responding to Government proposals for employment law reform and volunteered for several pro-bono projects, including Maternity Action.