Sex, Gender and the Law: What the Supreme Court’s Recent Ruling Means for Employers

Equal Pay: Clarified, But Still Contentious

Equal pay remains an area of legal uncertainty which will likely need clarifying further. The equal pay legislation requires that someone bringing an equal pay claim must compare themselves to a person of the opposite sex. A trans woman, with or without a GRC, cannot compare herself to a biological man who earns more than her for equal pay purposes, because under this ruling, and under the Equality Act 2010, she is not legally considered a woman.

However, she may still bring a discrimination claim if her treatment was based on the perception that she was a biological woman. The Court acknowledged that some trans individuals would be unable to access equal pay protections because of their ruling on the definition of sex under the Equality Act and how the Equal Pay laws currently define comparators—a limitation it recognised as a by-product of the statutory wording, rather than a deliberate exclusion.

This is an area where further case law may soon develop.

Facilities and the Workplace

While the judgment addressed services and representation, it did not tackle workplace-specific issues like access to toilets, showers, and changing rooms—though it has prompted fresh questions.

The Equality Act (Part 5) doesn’t deal directly with these issues, but the Workplace (Health, Safety and Welfare) Regulations 1992 require separate facilities for men and women, unless unisex, single-occupancy spaces are provided. The Court did not interpret these regulations and therefore, employers should remain cautious and assess facilities policies on a case-by-case basis, particularly given the risk of discrimination.

Single-Sex Spaces and Proportionate Justification

Contrary to some media portrayals, the ruling doesn’t newly permit the exclusion of trans individuals from single-sex spaces. The Equality Act has always allowed such exclusions—if they are a proportionate means of achieving a legitimate aim.

This ruling may embolden some to apply that provision more confidently, but the underlying legal test hasn’t changed. Blanket exclusions are still risky and likely to be challenged.

Looking Ahead: Don’t Rush, But Be Ready

So, what should employers do now?

• Don’t panic or overreact. The fundamentals of discrimination law remain intact. This judgment clarifies rather than rewrites the rules.
• Stay respectful and inclusive. Trans individuals are still legally protected, and nothing in the ruling permits disrespectful or exclusionary treatment.
• Be prepared.  Be aware of what your policies currently say and consider how you want to respond to questions you may receive either by employee members of the trans community or by employees who support strict enforcement of single sex spaces in line with the Equality Act definition of sex.
• Wait for full EHRC clarity. The Commission is expected to provide an updated Code of Practice later this year following public consultation. The Commission’s interim update published on the 25 April 2025 has proved controversial and appears rushed and so we would advise against making any changes off the back of this. The interim update is also not guidance and does not have statutory effect.
• Expect more case law. This ruling is unlikely to be the final word. More challenges are in the pipeline, including possible human rights-based arguments at a European level.

Final Thoughts

The Supreme Court’s ruling offers legal clarification—but not finality. It aims to reconcile legal definitions rather than settle cultural and policy debates. In many respects, the practical position for employers remains the same: respect all staff, make decisions fairly, and apply policies in a way that is lawful and balanced.

This is a legally and emotionally complex area. There are no simple answers—but thoughtful, informed, and inclusive practice remains the safest and most respectful path forward.

If your organisation is grappling with how to manage competing or overlapping protected characteristics in the workplace, please don’t hesitate to get in touch — we’re here to help.