Guidance to ITC members following the UK Supreme Court ruling on the meaning of “sex” in the Equality Act 2010
This update addresses:
- The UK Supreme Court (UKSC) ruling on the meaning of “sex” in the Equality Act
- The Equality and Human Rights Commission (EHRC) interim guidance
- How ITC advises member companies to approach this complicated topic.
The UKSC judgment
On 16 April 2025, the judgment in For Women Scotland v The Scottish Ministers held that “sex” in the Equality Act means a person’s “biological” sex. The judges decided that possessing a Gender Recognition Certificate (GRC) does not change a person’s legal sex for the purposes of the Equality Act.
This means, for example, a trans man, who was assigned a biological woman at birth but lives as a man and has a GRC, must still be classed as a woman when considering how the Equality Act applies.
ITC recognises the dismay and fear this ruling has caused many trans people. It must not become an excuse for worse treatment of trans people. The Equality Act makes gender reassignment a protected characteristic, and so discrimination against trans people is unlawful. Harassment of trans people may constitute hate crime.
The EHRC guidance
Subsequent to the judgment, the EHRC (the independent government body responsible for equality law) issued interim guidance for employers and service providers.
In workplaces, it was already compulsory to provide single-sex bathrooms (and washrooms and changing facilities if needed). This is set by health and safety legislation.
The EHRC guidance now underlines that these single-sex facilities in workplaces may only be used by people of that biological sex.
However, the EHRC also states that trans people should not be left without a suitable facility to use.
Unisex conveniences in workplaces are permissible, but the provision must be a self-contained lockable room with facilities for one person at a time.
Providers of services to the public – venues, cafes, classes etc – do not always need to provide people with single-sex facilities. However, if a service is single-sex, it must be on the basis of biological sex.
ITC companies should read the EHRC guidance, here.
ITC’s advice to companies
The UKSC ruling will affect many people working in the independent performing arts sector. Unfortunately, neither the ruling, nor the guidance issued by the EHRC, are particularly helpful in dealing with the practical questions that arise.
For example, many ITC members do not have space or resources to put in unisex bathrooms. Use of dressing rooms will also need to be managed. Those companies providing single-sex services to the public, such as some workshops, will need to consider how to comply with the guidance. There is no guidance on the risk that monitoring these arrangements may itself lead to prejudicial treatment.
The practical limitations of the EHRC guidance mean that the only way forward is to consult your staff, cast, crew and creatives to co-design solutions. Companies should work with trade unions on productions and in workplaces to enable the sensitive discussions needed to ensure everyone has facilities available. Consultation with your workers should take place before new policies are issued, helping think through the consequences of any changes to comply with the new guidance.
Remember that solutions you put in place now are likely to be temporary, until the EHRC publishes full guidance later in the year. ITC hopes this will address practical questions for small employers, as well as the risk of discriminating against trans people that may arise from operating and monitoring single-sex provision. We encourage companies to respond to the EHRC consultation on this guidance.
In the meantime, ITC urges members to take a kind and practical approach to the change. Companies should avoid knee-jerk reactions that cause conflict or disadvantage trans workers. Harassment and discrimination towards trans people is unlawful and companies may be vicariously liable if they do not take steps to prevent it.
ITC advises companies to share details of local support organisations for trans people. There may be a heightened risk of hate crime towards trans people at this time, and so companies should check and publicise arrangements for reporting incidents to the police.
Ultimately, ITC companies will want to create safe and welcoming workplaces, which are the best way to facilitate the creation of good art.
Please talk to ITC for advice when needed.
