The Supreme Court ruling set to disrupt employment handbooks across the UK

For a long time, one of the hottest and most contentious questions in Equality & Diversity has been “What is a woman?” Last week, the Supreme Court answered this question in a ruling that is set to cause rewrites of policies up and down the UK.

There have been various suggested answers to this question: anyone who says they are a woman; biological women plus trans-women who hold GRCs; or just biological women. Last week, the Supreme Court answered the question, at least so far as the Equality Act is concerned: a woman is someone who is biologically female.

As the judges were at pains to point out, that doesn’t undermine the protected characteristic of gender reassignment. Those with that protected characteristic retain the same protections that those with any other protected characteristics have from direct and indirect discrimination, victimisation and harassment. The point is not that trans people don’t have the same rights regarding discrimination: it is just that even if they have a GRC, that doesn’t give them the right to be treated as if they have changed sex for the purposes of equality law.

So where does that leave the many companies who have followed guidance by charities such as Stonewall, Gendered Intelligence, GIRES, Equality Network and others?

Barrister Naomi Cunningham has advised many employees and employers on the vexed and tangled questions in this area, and, as Chair of Sex Matters, she played a part in framing the legal arguments put by one of the interveners in this landmark ruling. The Supreme Court permitted four parties to intervene, two of which — EHRC and Sex Matters — were permitted to make oral submissions at the hearing. Sex Matters’ submissions were praised by the court as giving “focus and structure to the argument”.

After the judgment was handed down, Naomi said “Around a quarter of the country’s workforce works for employers which either are or have recently been ‘Stonewall Champions’. However, members of such programmes now need to identify the risks, rewrite their policies and change their culture to reflect the law as stated by the Supreme Court.”

How does this affect you?

This ‘quarter of the workforce’ includes local authorities, NHS trusts, the police, government departments, charities, universities, schools, blue chip companies and many more. Some have already been caught up in discrimination claims. All will need to review their policies to ensure that women’s rights are given their full weight. Naomi Cunningham is one of a growing team of barristers at Outer Temple Chambers with specialist expertise in this matter who have provided advice to numerous organisations and individuals already on the interpretation of the Equality Act and its implications.

Find out more

Naomi has developed a particular specialism in the interaction between the Equality Act and the Gender Recognition Act, gender reassignment discrimination, the single-sex exceptions in the Equality Act, and the public sector equality duty. She gave evidence to the Women and Equalities Select Committee on reform of the GRA in February 2021, to the Equalities, Human Rights and Civil Justice Committee of the Scottish Parliament in June 2022, and again to the Women and Equalities Select Committee at Westminster in January 2023.

Other members of the Employment and Discrimination team with expertise in this area include Sarah Crowther KC and Sapandeep Singh Maini Thompson, who have acted in the recent high-profile trial of Harriet Haynes against the English Blackball Pool Federation in which Judgment is awaited; Charlotte Elves, who has appeared with Naomi in Peggie v NHS Fife and Wayne and O’Neill v UCU; Will Young, who appeared with Naomi in Newman v Metropolitan Police; Alex Line who continues to act for Government Departments concerning claims brought against them concerning, amongst other things, the SEEN network; Gus Baker who has been appointed to investigate workplace grievances arising from gender critical beliefs; and Oliver Lawrence who has lectured on the topic whilst acting for clients in ET proceedings.   

Contact Nick Levett for more information on our Employment and Discrimination team and their expertise on +44 (0)20 7427 4908

News 23 Apr, 2025