On 16th April 2025, the UK Supreme Court delivered a significant judgment in the case of For Women Scotland Ltd v The Scottish Ministers. This case revolved around the correct interpretation of the Equality Act 2010 (EA 2010) which seeks to protect people who are at risk of suffering from unlawful discrimination. Among the people whom the EA 2010 recognises as having protected characteristics are women – whose protected characteristic is sex, and ‘transsexual’ people, whose protected characteristic is gender reassignment.
Here is a breakdown of the key findings from the Supreme Court judgment and their significance.
The core issue
The central question in this case was whether references in the EA 2010 to a person’s sex and to ‘woman’ and ‘female’ are to be interpreted as including those who have an acquired gender through the possession of a Gender Recognition Certificate (GRC).
Or, put another way, is a trans woman with a GRC entitled to claim protection under the Equality Act 2010 on the basis of their ‘sex’ as a woman (as recognised under their GRC – referred to in the judgment as their ‘certified or acquired sex’), or does the term ‘sex’ only describe the sex of a person at birth (referred to in the judgment as ‘biological sex’)?
Key findings
- Interpretation of ‘sex’:
- All five judges at the UK’s highest court unanimously ruled the legal definition of a woman under the Equality Act 2010 should be based on biological sex.
- Impact on gender recognition:
- While the Gender Recognition Act 2004 (GRA) allows individuals to change their legal gender, the Court found that this does not alter the interpretation of ‘sex’ in the EA 2010. Therefore, the protections and provisions related to sex discrimination in the EA 2010 apply based on a person’s biological sex.
- Consistency and clarity:
- The Supreme Court emphasised the importance of having a clear and consistent definition of ‘sex’ across the EA 2010. The Supreme Court stated that consistency is crucial for the practical application of the law by employers, service providers, and other organisations.
- Implications for trans individuals:
- The judgment acknowledges the rights of transgender people under the GRA 2004 but clarifies that these rights do not extend to altering the definition of ‘sex’ in the EA 2010.
- Judge Lord Hodge said the judgment should not be seen as a triumph of one or more groups in society at the expense of the other and stressed that the law still gives protection against discrimination to transgender people.
Significance
- Legal clarity:
- This judgment provides clarity on the interpretation of ‘sex’ in the EA 2010, which is essential for both individuals and organisations.
- Women’s rights:
- Service-providers are sometimes permitted to offer services to the sexes separately or to one sex only. For instance, a hospital might run several women only wards. By defining ‘sex’ based on biological criteria, the judgment provides clarity for single sex and separate sex services.
- The rights of trans people:
- The Supreme Court stated that a biological sex interpretation would not have the effect of disadvantaging or removing important protection under the EA 2010 from trans people (whether with or without a GRC); in this regard the EA 2010 still protects trans people from discrimination under the characteristic of ‘gender reassignment’ and trans people are also able to claim protection from direct and indirect discrimination and harassment on the grounds of perception or association with their acquired gender.
- Balancing rights:
- The Supreme Court’s decision highlights the need for the law to balance the rights of different groups, observing that those rights can sometimes conflict or contradict one another.
Conclusion
The Supreme Court’s judgment is a landmark decision that clarifies the meaning of ‘sex’ in the Equality Act 2010. This decision will have significant implications for how sex discrimination laws are applied and understood in the UK and has left employers questioning how to navigate the practical implications of the ruling.
On 25 April the European and Human Rights Commission issued a short statement, linked here: An interim update on the practical implications of the UK Supreme Court judgment | EHRC. Amongst other things, this guidance states that in the workplace, trans women should not use women’s facilities and trans men should not use men’s facilities. Nor should they be left without facilities to use. It is worth noting that the statement is non-statutory and an updated Code of Practice is expected this summer.
In the meantime, employers should review their existing policies and practices in light of the updated EHRC statement. However, it is important that any decisions or changes are made sensitively, recognising that all employees should be treated fairly and with dignity.
Finally, we understand that a retired judge is appealing to the European court of human rights over the ruling. The transgender judge, Victoria McCloud, had requested to join the litigation, as she wanted to provide the Supreme Court with guidance on the possible impact on trans people. However, her request was rejected, and she is now appealing on the grounds of Article 6 of the Human Rights Act 1998, which guarantees the right to a fair trail in both criminal and civil matters.
Terminology
We have adopted the terminology used in the Supreme Court judgment.
This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our Employment team.
