In a lengthy and well-considered judgment, the UK Supreme Court has today unanimously upheld an appeal centred around the interpretation of the ‘sex’ protected characteristic in the Equality Act 2010 (EA10).
I worked on development and implementation of equalities legislation in policy roles early in my career. In 2010, I was fortunate to be presented an award for my work supporting the trans community and in tackling transphobia.
I have always held the view that both the ‘sex’ and ‘gender reassignment’ protected characteristics in EA10 do not go far enough to protect intersex persons or the trans and non-binary community, and could cause significant problems in day-to-day living for people who live in the opposite gender than the sex they were assigned at birth. I have seen first-hand the often devastating effects of this through my work supporting, within workplaces, trans people who were experiencing mental ill health and suicidal thoughts caused by a lifetime of prejudice, misunderstanding, and hostility including both physical and verbal assaults.
The Supreme Court’s judgment today supports a long-standing policy interpretation of section 11(a) of EA10 that the sex protected characteristic means biological sex: ie male or female. EA10 ignores intersex completely, despite someone being born intersex for biological reasons during gestation.
EA10 sets out in section 7(1) that a person who is undergoing or has undergone a process to change their gender to the opposite than the sex they were assigned at birth has the protected characteristic of gender reassignment. In this regard, it has always fallen short in protecting the wider trans and non-binary community.
In practice, this characteristic has tended to be interpreted as including the wider community. However, this relies too much on societal attitudes at a particular point time. In an increasingly polarised society, ambiguity leaves people more vulnerable to facing discrimination and prejudice. I have always argued, therefore, that the ‘gender reassignment’ protected characteristic should be reviewed and renamed “Gender Identity” so that it less ambiguously includes people who are starting to question their gender identity (which would better protect children) and people who identify as non-binary or gender fluid.
My thoughts and allyship are with the whole community today, and always will be.
The judgment today will have many implications, both in workplaces and wider society, that require nuanced and detailed policy consideration. Employers have a duty to prevent discrimination, harassment, and victimisation and duty of care to all employees. There may also be a rise in employment relations issues as a result of ongoing debate around today’s ruling, which may take place in the working environment.
If any organisation requires advice or policy support on any of the issues raised today, do get in touch for a confidential and non-judgemental conversation.
Laura Evans, CEO 16th April, 2025