We learn how the recent Supreme Court ruling on the definition of ‘woman’ has implications for dentistry, dental staff and patients.
Last month, the UK Supreme Court ruled that the terms ‘woman’ and ‘sex’ in the Equality Act refer only to a biological woman and to biological sex.
This means that under the act:
- A ‘woman’ is a person born female
- A ‘man’ is a person born male.
Additionally, if somebody identifies as trans, they do not change sex for the purposes of the act – even if they have a gender recognition certificate (GRC).
The ruling has far-reaching implications, including in the workplace. We hear from Sarah Buxton, an HR and employment lawyer, about how the judgment impacts dental practices.
How does the ruling impact staff members who are transgender or non-binary?
There are several implications that apply in practice that employers should consider. Firstly, employers must now organise single-sex facilities, including toilets and changing rooms, by biological sex. This means that trans women (assigned male at birth) should not use women’s facilities, and trans men (assigned female at birth) should not use men’s facilities, unless gender-neutral options are provided.
Employers are also encouraged to provide gender-neutral or single-occupancy facilities where possible, to ensure that trans and non-binary staff are not left without appropriate facilities. These are important considerations in a dental practice, especially when members of staff are using the changing rooms regularly.
Employers should also be aware of the possible claims that employees can bring, this is particular important as a claim can come from both sides, meaning that trans staff may bring claims for discrimination if denied access to facilities matching their gender identity, while others may claim if required to share single-sex spaces with trans individuals. The ruling does not resolve these tensions but clarifies the legal starting point.
The Equality Act 2010 does not explicitly recognise ‘non-binary’ as a protected characteristic. However, non-binary staff may be protected if they are ‘proposing to undergo, are undergoing, or have undergone’ a process of gender reassignment. Employers should continue to treat non-binary staff with respect and dignity, and ensure that policies do not indirectly discriminate against them.
Employers should review and update policies, training and communications to reflect the legal definitions and ensure that all staff understand the implications of the ruling. If any employers are unsure on how do this, to ensure that are not discriminating against anyone, they should seek legal advice in respect of this.
How does the ruling impact patients who are transgender or non-binary?
Not only does the ruling have implications for staff members, it also extends to patients. Single-sex facilities must now be provided on the basis of sex at birth. This means that trans women should not use women’s facilities and trans men should not use men’s facilities. If you provide facilities for patients, you are encouraged to offer gender-neutral or single-occupancy options where possible, to ensure that trans and non-binary patients are not left without appropriate facilities.
Non-binary patients may also be protected if they are ‘proposing to undergo, are undergoing, or have undergone’ a process of gender reassignment, and whilst there is no legal requirement to provide non-binary-specific spaces, providers should avoid indirect discrimination and ensure dignity and respect.
The ruling does not remove or diminish the protection from discrimination for trans or non-binary patients. They remain protected under the characteristic of gender reassignment.
What can inclusivity-centred dental practices do to continue promoting the clinic as a safe environment?
Inclusivity-centred dental practices can continue to promote their clinics as safe environments for all patients by taking both practical and legal steps.
Firstly, where they are single-sex facilities such as toilets and changing rooms, practices should ensure that the policies are clear, lawful, and based on biological sex, but also provide alternatives where possible. It is best practice for inclusivity to offer gender-neutral or single-occupancy facilities, and this can also help to avoid indirect discrimination claims.
Dental practices should also highlight that discrimination, harassment or victimisation on the grounds of gender reassignment remains unlawful, and they should make it that all patients will be treated with dignity and respect.
It is important that dental practices ensure that all members of staff are trained on the implications of the ruling, the distinction between sex and gender reassignment protections, and the need to avoid both direct and indirect discrimination. They should also look to train staff on handling requests from trans and non-binary patients regarding the facilities, pronouns, and privacy, so that these can be dealt with carefully.
Finally, it is vital that you clearly communicate the practice’s commitment to inclusivity and legal compliance on your website, when contacting patients and in signage. You should also provide accessible channels for patients to raise concerns or suggestions about inclusivity and safety.
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