By Sara Meyer & Hilary Larter
|Published 10 June 2026
On 21 May 2026, the Government Equalities Office updated its guidance on gender pay gap reporting to reflect the decision of the Supreme Court in the For Women Scotland case, in which it was held that the terms "man", "woman" and "sex" in the Equality Act 2010 (EqA) refer to biological sex.
The part of the guidance entitled "Preparing your data" now includes a section headed "Recording employees' sex", which specifies that as the gender pay reporting regulations are made under the EqA, gender pay gap reporting must be based on employees' biological sex. (This is a marked change from the previous version of the guidance, which stated that employers should "be sensitive to how an employee identifies their gender" and that the regulations on gender pay gap reporting "do not define the terms 'men' and 'women'".)
The guidance now recommends that employers have a policy or process to collect data on employees' sex, which should apply equally to all employees regardless of their sex or gender identity. It cautions employers against singling out individual employees to ask about their sex or gender identity, and recommends using information that employees have already provided, such as HR or payroll records. If such data is unavailable or unreliable, the guidance advises employers to find a proportionate and confidential way for employees to confirm or update the record of their sex, but to avoid asking for documentation to confirm biological sex.
On Gender Recognition Certificates (GRCs), the guidance flags that gender pay gap reporting should be based on biological sex, not the acquired gender recorded on an employee's GRC, and states that it would not be an offence for an employer to disclose information regarding the employee's pre-GRC gender to the extent required by the law on gender pay gap reporting. Employers should therefore limit who has access to this information - the guidance suggests that one person within the organisation could have confidential access, and the information should then be anonymised so that the employee cannot be identified.
These changes to the guidance bring it into line with the FWS decision and are therefore unsurprising. However, they do present practical difficulties for employers who wish to provide an inclusive environment for trans employees. Employers should ensure that any communications regarding changes to their gender pay gap reporting are sensitive and that they offer a way for trans employees to record their sex and raise any concerns on a confidential basis.
Gender pay gap reporting: guidance for employers: Preparing your data
