Looking ahead for 2025: sex, boardrooms and gender recognition certificates

In November 2024, the Supreme Court heard arguments in an important appeal case concerning the meaning of “sex” in the Equality Act 2010.   The question the Court needs to determine is, essentially, whether “sex” in the Act means “biological sex” or “legal sex”.   If it means the latter,  people with a gender recognition certificate would be treated as being of the sex recorded on their certificate for the purposes of discrimination law under the Equality Act.  It would also affect the Scottish Parliament's guidance on boardroom diversity, which is being challenged in this litigation. 

The case (and the meaning of “sex” in the Equality Act) has implications for sex discrimination and equal pay law (including who would be appropriate comparators in such cases) as well as the provision of single-sex services.   The latter has long been a flashpoint in debate over trans rights, with a recent employment tribunal case involving Edinburgh Rape Crisis being one example of how internal disputes about these issues can result in Employment Tribunal claims (and, in that case, a significant payout to the employee).  

Judgment in this case is expected in the course of 2025.    Whatever the result, it will have major implications for equal pay and discrimination law.   However, it is unlikely to put to bed the debate over gender identity, trans rights and gender-critical feminism, which continues to be a fertile source of claims and a complex area for employers to navigate.