Supreme Court: Position still unclear following ruling, law firm says
A City law firm with a leading employment law practice withdrew a briefing on last week’s Supreme Court ruling defining women after the successful claimant blasted it as “rubbish”.
For Women Scotland, which won the landmark ruling that the Equality Act 2010 definition of sex refers to biology, wrote on X that City firm Lewis Silkin “will end up costing clients if they push this line”.
The briefing, which aimed to explain the case’s implications for employers, has now been replaced with a much longer explanation of the particular issue of single sex spaces that stresses: “This article does not attempt to definitively state the law after the Supreme Court’s decision.”
But Lewis Silkin told Legal Futures that the original briefing was not wrong; rather, it decided to “expand it” following “heated debate which conflated the law about services with the law about workplaces, and the statement given by the equalities minister in Parliament on Monday”.
The original briefing from last Thursday was drawn to For Women Scotland’s attention on Monday evening by an X user who said “my wife’s employer has received the following legal advice” and questioned whether it was correct.
It was taken down from the firm’s website the following day, with the error page on the website noting that it has 170 lawyers in its employment team.
One X user wrote: “Ooops. 170 lawyers and Lewis Silkin has already had to withdraw its advice to break the law and discriminate against women… Embarrassing failure to actually read the For Women Scotland judgment.”
Drafted by Anna Bond, a legal director in the employment department, the section that drew ire was on single-sex facilities in the workplace.
It said: “As with genuine occupational requirements, the law has not changed. If employers choose not to provide single sex spaces they need to be able to justify this approach and they must be compliant with the requirements applying to gender neutral facilities.
“If employers do provide single sex spaces then (based on previous cases) it is likely to be gender reassignment discrimination to bar trans people from using the facilities of their choice. As this does not relate to GRCs [gender recognition certificates], it is unaltered by the court’s judgment.”
For Women Scotland pointed Lewis Silkin to an article in The Times written by Akua Reindorf KC, a commissioner for the Equality and Human Rights Commission – which intervened in the Supreme Court – that stressed how single-sex facilities were mandatory in workplaces and schools.
“The judgment has put it beyond doubt that the Equality Act, with other legislation, requires these to be provided according to biological sex,” she wrote.
It was wrong, she went on, to assert that an employer or service provider must justify excluding trans people from single-sex provision in accordance with their lived gender, and that this must be done on a case-by-case basis.
Social media users mocked Lewis Silkin’s legal nous. One wrote: “Seriously? Despite being a law firm, @lewissilkin is fundamentally wrong. Trans identifying men – with or without a GRC are still men. Single sex spaces mean biological sex only. The GRC does not undo this. Get it right!!”
Another said: “Lewis Silken [sic], HR Manager here. Won’t ever use you for employment law updates. Sex means biological sex. Trans have right not to be discriminated against. So this means, where it is required to provide single sex spaces, trans can be provided with separate facility.”
The revised briefing said the commentary to date – including equalities minister Bridget Phillipson saying the ruling was clear that provision of services should now be accessed on the basis of biological sex – all related to service providers.
“Employers, however, are in a different position. The rules for employment are in a different part of the Equality Act.
“Those rules make no explicit allowance for the provision of single or separate sex facilities to employees and (crucially) give employers no equivalent protection from trans-related discrimination claims.
“It has long been the case that an employer’s responsibilities in this area were unclear, involving a balancing act between the rights of different groups and risking legal claims from all sides.
“We remain of the view that the position for employers remains unsatisfactorily unclear, as it was before the Supreme Court’s judgment. There are risks to employers whatever they choose to do at the moment, and it is not as simple as just specifying that single-sex facilities in the workplace are now based on biological sex.”
After explaining in detail why this was the case, the briefing concluded: “This remains a difficult and divisive issue. This article does not attempt to definitively state the law after the Supreme Court’s decision, or say who can and cannot bring successful legal claims.
“Our main point is that, unfortunately, the Supreme Court’s judgment has not significantly helped employers to comply with the law and do the right thing by different groups in the workplace when it comes to single-sex facilities.
“New statutory guidance on the workplace is needed urgently so that employers can act confidently – and the promised updated guidance for service providers on single-sex services (rather than on employment) will not suffice.”
Leave a Comment