What the Supreme Court ruling on ‘sex’ means for FE colleges

The Supreme Court ruling on the legal interpretation of “sex” in the Equality Act 2010 will have implications across public life, including in relation to FE colleges.  The narrow point which the court decided was whether the appointment of a trans woman who has a gender recognition certificate (GRC) counts as the appointment of a woman for the goal that boards of certain Scottish public authorities are to have 50 per cent non-executive members who are women. In the court’s judgment, it does not and therefore the Scottish government’s guidance on that point was incorrect. 

The judgment is of particular relevance to individuals with GRCs, which are not available to those under 18 years old. But it also brings the long-standing issues relating to students or staff who are transgender or questioning their gender identity into sharp focus.

College guidance gaps

There is a current gap in terms of clear and comprehensive guidance on this topic for colleges.  The Equality and Human Rights Commission (EHRC) has published codes of practice including those for services, public functions and associations (currently under review) which contain guidance relevant to colleges.

But the only publication with a college-specific focus is the draft non-statutory guidance on gender questioning children for schools and colleges in England, published in December 2023.  This consultation document issued by the previous government attracted a significant response but was never finalised. 

Protections for trans people continue

The draft guidance dealt with practical issues such as name changes, use of pronouns, single sex spaces and sport.  Whilst the draft guidance was in line with the recent court judgment insofar as it stated that legal duties regarding sex should be framed around biological sex, neither the guidance nor the judgment fully considers the complex legal issues colleges are regularly dealing with when balancing safeguarding, data rights, regulatory and Equality Act duties for students with different protected characteristics.

The April 2024 Cass Review highlighted issues related to young people socially transitioning which are relevant to colleges, but did not offer specific guidance to the sector.  Following the recent judgment, the EHRC confirmed that the code of practice will be revised.  It is hoped that the revised code and finalising the gender questioning children guidance will be considered by DfE and/or EHRC in the coming months.

It is important to note that there continues to be significant protections for trans people under the Equality Act, relevant to students, staff and the wider college community.

The Supreme Court’s decision does not change the fact that gender reassignment is a protected characteristic and emphasised that trans people have exactly the same level of protection in the Equality Act against discrimination, harassment and victimisation as other groups. The judgment is not a rollback of rights on the scale that some have suggested.

Emotive issue

For colleges as employers, there may be some immediate impact; staff with a GRC will no longer be able to make an equal pay claim based on the gender stated on their GRC (they may still do so on the basis of biological sex).

In terms of the practical day-to-day management of trans employees, little has changed. As things stand, we would urge caution before making significant changes to staff policies or practices. 

Colleges know that this is a very emotive issue for both trans people and those who hold gender critical beliefs, which also have the potential of being protected beliefs under the Equality Act.  It may be sensible to consider if any support or clarifications should be offered to affected individuals.

Pending further guidance from the DfE or EHRC, it is important for colleges to continue to proceed with caution in dealing with the complex and sensitive issues which arise. Look carefully at the circumstances, taking all relevant legal and practical considerations into account.  Be cautious about taking a blanket approach and, where necessary, take legal advice.