Barrister reiterates trans ‘exclusion is not mandatory’ after discrimination case outcome

The UK’s first out non-binary barrister has emphasised that “nothing in the current law makes [trans] exclusion mandatory”. 

Following the employment tribunal decision in B M Kelly v Leonardo UK Ltd, which resulted in Scottish engineer Maria Kelly’s case against her employer – over allowing her trans co-worker to use the toilets – being dismissed, Oscar Davies has spoken to PinkNews. 

April’s Supreme Court ruling deemed that the 2010 Equality Act’s definition of sex referred to “biological sex” and its definition of a woman related to a “biological woman”.

In light of this, Equality and Human Rights Commission (EHRC), which regulates equality law in the UK, has issued updates to its code of practice on single-sex service provisions to the UK government. The updates are expected to exclude trans people from gendered facilities consistent with their gender identity.

The employment case involving Kelly serves as proof that the Supreme Court ruling doesn’t mean exclusion of trans people is necessary. 

‘Nothing in the current law makes exclusion mandatory’

Davies said the case shows that, despite the Supreme Court’s ruling, “employers still retain discretion, for example under the Workplace (Health, Safety and Welfare) Regulations 1992, to adopt inclusive policies for shared facilities”. 

They added: “Tribunal ruled that identity-based access was a ‘proportionate means of achieving a legitimate aim’, which means inclusion remains legally permissible. Nothing in the current law makes exclusion mandatory.”

The human rights barrister at Garden Court Chambers continued: “One notable feature of the judgment is the Tribunal’s recognition that strict biological-sex allocation can produce categories such as ‘putative women’ and ‘putative men’, which do not reflect how workplaces function in practice. This pragmatic observation forms part of the proportionality analysis.” 

‘It’s about ‘proportionality not panic’

Davies said the decision suggests that, despite the April ruling, “inclusion is still possible where employers assess proportionality carefully and where privacy and dignity can be maintained for everyone.” It’s about “proportionality not panic,” they added. 

“The case does not create automatic rights or automatic exclusions. Instead it confirms that UK law continues to operate through context-specific balancing, rather than blanket rules.” 

Speaking about the forthcoming EHRC Code of Practice, they said the ruling in Kelly v Leonardo also “highlights the difficulty of reducing complex, fact-specific assessments into rigid guidance”. 

“The Tribunal’s reasoning illustrates that overly prescriptive rules may not capture how the proportionality test actually works in real workplaces,” they concluded.

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