Nursing unions have responded to the UK Supreme Court judgement on the legal definition of a woman under equalities law.
The Royal College of Nursing (RCN), Unison and Unite have all issued position statements on the landmark ruling, which said that a woman is defined by biological sex.
“We strive to ensure that all members experience positive, safe, and discrimination-free workplaces and, moreover, society generally”
Royal College of Nursing
All three unions said they were carefully considering the judgement and the implications it might have on the healthcare sector and reiterated that they were committed to preventing harassment or discrimination of any kind.
On 16 April, judges at the UK Supreme Court ruled unanimously that the terms “woman” and “sex” in the Equality Act 2010 refer to biological sex.
This means that, under the act, a woman is a biological woman or girl (a person born female), while a man is a biological man or boy (a person born male).
If somebody identifies as transgender, they do not change sex for the purposes of the legislation, even if they have a gender recognition certificate.
The Supreme Court sided with campaign group For Women Scotland, which had brought a case against the Scottish Government arguing that sex-based protections should only apply to people born female.
Announcing the judgement, Judge Lord Hodge said: “The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.
“But we counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another, it is not.”
The judgement has implications for organisations, including healthcare services.
Interim guidance published by the Equality and Human Rights Commission (EHRC) in wake of the ruling, set out that it was compulsory for workplaces to provide sufficient single-sex toilets and changing facilities for their staff.
However, it said it was not compulsary for services that are open to the public, such as hospitals and cafes, to provide single-sex facilties for service users.
The equalities watchdog said in the guidance that, going forward, trans women should not be permitted to use women’s facilities and trans men should not be permitted to use men’s facilities.
In some circumstances, it said the law also allowed trans women to be banned from using the men’s facilities and trans men to be banned from using the women’s.
It added that trans people should not be put in a position where there are no facilities for them to use and instead mixed-sex facilities in addition to single-sex facilities should be provided.
The EHRC is due to publish a new statutory code of practice and full and updated guidance by the summer.
“Harassment, intimidation or intolerance are never acceptable”
Unison
In response to the Supreme Court ruling, the RCN this week published a position statement in which it said it was “carefully considering the decision” and the impact it might have on its members.
The union noted that its five-year equity, diversity and inclusion strategy had set out its ambition “to encourage greater inclusion, diversity, and equitable support in meeting the needs of all our members”.
The statement said: “We support the rights of women and trans people, and we strive to ensure that all members experience positive, safe and discrimination-free workplaces and, moreover, society generally.
“Employers must engage in constructive dialogue and carefully consider what action they need to take to ensure they comply with their legal obligations.
“The RCN is committed to working with employers to find solutions that ensure the needs of women and trans people are accommodated and that they are not discriminated against.”
Similarly, the union Unison said in a statement, published on 23 April, that it was “carefully considering” the implications of the judgement, as well as reviewing its own resources to ensure they remain “legally accurate and inclusive”.
The union said it supported “the legal rights of women and trans people” so they are not subjected to discrimination or harassment, and that it would “continue to advocate for these rights within the framework of the law”.
Employers and other organisations were urged by Unison to “not overreact to this judgement”.
“Unison will provide support as necessary to any members who are affected by this. Harassment, intimidation or intolerance are never acceptable,” it said.
Meanwhile, Unite the union’s national LGBT+ committee announced that it was “deeply concerned” by the judgement issued by the Supreme Court.
In a statement published on 17 April, the union said: “We will be taking some time to look at the decision in full, especially where the ruling could create legal uncertainty and discrimination in employment, education, health services etc. We will issue further statements as appropriate.
“We would like to take this opportunity to send a message of solidarity and comradeship to the trans community, many of whom will be experiencing fear and uncertainty in what lies ahead.
“But be assured you are seen, you are loved and you are not alone. Unite the union will always stand with you.”
The Supreme Court judgement comes amid a row between NHS Fife and A&E nurse Sandie Peggie.
Sandie Peggie
Ms Peggie claims she was subjected to unlawful harassment under the Equality Act 2010 by being made to share a changing room with Dr Beth Upton, a transgender woman.
The EHRC recently wrote to the health board to remind it of its “obligations” around single-sex spaces under the equality act.
It warned that it would consider use of enforcement powers should NHS Fife not comply with these obligations.
Following the Supreme Court ruling, a spokesperson for NHS Fife said: “NHS Fife notes the clarity provided by today’s Supreme Court ruling regarding the legal definition of a woman.
“We will now take time to carefully consider the judgment and its implications.”
Separately, a group of NHS nurses in Darlington are also suing their employer over sharing a changing room with a transgender colleague.
Their case is due to be heard in October.
