For Women Scotland v The Scottish Ministers [2025] UKSC 16
The Supreme Court has recently clarified that under the Equality Act 2010 ('EqA 2010') the protected characteristics of sex and gender reassignment are legally distinct and should be interpreted independently of one another, each offering separate and specific forms of protection. The Supreme Court has ruled that the definition of a woman in the Equality Act is based on biological sex. The ruling has wide implications for discrimination law, for example, in relation to the regulation of single sex spaces.
Background of the Case
For Women Scotland ('FWS'), a voluntary organisation that campaigns to 'strengthen woman's rights' in Scotland, contended that the definition of 'woman' under the EqA 2010 is based on biological sex. As such, the organisation argued that transgender women holding a Gender Recognition Certificate ('GRC') should not fall within the legal definition of a woman under the EqA 2010 and consequently should not be included in the definition used in the Gender Representation on Public Boards (Scotland) Act 2018, which was introduced to create gender representation targets to increase the proportion of women on public boards in Scotland. In contrast, the Scottish Ministers submitted that the definition of a 'woman' under the EqA 2010 refers to 'certified sex', meaning that transgender women with a GRC are and should be included within that definition. The Court of Session in Scotland had previously found in favour of the Scottish Ministers.
Supreme Court Decision Summary
The Supreme Court ultimately upheld the FWS appeal, holding that the terms 'man,' 'woman' and 'sex' in the Equality Act refer to biological sex and does not extend to certified sex. The Court carried out an analysis of legislative history and statutory interpretation of the words 'woman', 'man' and 'sex' and concluded that any other interpretation would render certain provisions within the EqA 2010 incoherent.
The Supreme Court also indicated that provisions in the Equality Act for 'single sex' spaces, which allow exclusion of people of a particular sex in circumstances where it is proportionate, are therefore also based on biological sex. This indicates, therefore, that transgender people may be excluded from single sex spaces based on their sex assigned at birth. This finding will require careful consideration of how to organise workplace facilities.
The Supreme Court affirmed that the EqA 2010 still protects transgender individuals, on the grounds of gender reassignment and in some circumstances, perceived sex. These protections encompass direct discrimination, indirect discrimination and harassment. It is noteworthy that transgender individuals do not need a gender recognition certificate to qualify for this protection. Discrimination claims brought by trans people could be on the ground of gender reassignment, or sex discrimination if the discrimination towards them is based on a perception of their sex rather than gender reassignment.
Implications of the Ruling
The recent Supreme Court judgement highlights the importance of and need for employers to strike a balance between complying with the law and supporting the well-being and dignity of their employees, in order to avoid potential discrimination. Employer obligations need to be considered, for example, in the context of showers/toilets and changing facilities, sport, and how and when service providers can and must provide single sex sports provision.
We therefore recommend employers to take the following actions:
The Equality and Human Rights Commission has issued interim guidance in light of the judgment, which can be found here. We understand that this guidance is to be further updated following consultation.