The Supreme Court has delivered its ruling today in the highly technical case of ‘For Women Scotland Ltd (appellant) v The Scottish Ministers (Respondent)’, in which it gives its judgement on the meaning of the term ‘sex’ for the purpose of the Equality Act 2010.
Overview of the legal issues
The Gender Recognition Act 2004 stipulates that “if the acquired gender is the male gender, then the person’s sex becomes that of a man, and if it is the female gender, the person’s sex becomes that of a woman”. The Act therefore provides comprehensive protection for someone who is transgender.
However, before today’s judgement, the extent of protection afforded to someone who is transgender under the Equality Act 2010 has been unclear. It is ambiguous as to whether it refers to biological sex or the legal ‘certified’ sex as defined by the Gender Recognition Act 2004.
The Supreme Court was therefore tasked with determining the definition of ‘man’, ‘woman’, and ‘sex’ within the context of the Equality Act 2010.
Circumstances in the case of ‘For Women Scotland Ltd (appellant) v The Scottish Ministers (Respondent)’
In 2019, the Scottish Government enacted the Gender Representation on Public Boards (Scotland) Act 2018, aiming to increase the representation of women on public sector boards. This legislation defined ‘woman’ to encompass individuals living as women who were either undergoing or proposing to undergo gender reassignment, and accompanying guidance was issued.
The guidance clarified that the legal definition of women would align with both the Equality Act 2010 and the Gender Recognition Act, meaning the definition of sex extended beyond biological or birth sex and included those possessing a gender recognition certificate, which would act as proof of their sex ‘for all purposes’.
The campaign group ‘For Women Scotland’ contested this interpretation, asserting that the terms ‘man’ and ‘woman’ should be understood in their common, everyday sense, arguing that sex is an immutable biological characteristic. They argued that the Equality Act 2010 takes precedence over the Gender Recognition Act 2004, and therefore, the definition of woman must strictly adhere to biological sex to safeguard the rights of women.
Conversely, the Scottish Government maintained that the language of both pieces of legislation is clear and that the intended meaning of the law was understood. Furthermore, they argued that the Gender Recognition Act 2004 explicitly states that a full gender certificate applies “for all purposes,” thereby entitling an individual whose sex has become that of their acquired gender to the protections associated with that sex, including protection against unfavourable treatment.
The central issue therefore before the Supreme Court was whether an individual holding a full Gender Recognition Certificate (GRC) affirming their gender as female is considered a “woman” under the Equality Act 2010.
Supreme Court judgement 16 April 2025
The Supreme Court delivered its judgement on the legal definition of a woman, with Lord Hodge saying, “it’s the “unanimous decision” of this court that the terms “woman” and “sex” refer to a biological woman and biological sex in the Equality Act 2010”. In other words, a trans woman with a GRC would not qualify as a ‘woman’ under the Equality Act 2010.
In the judgement (Section 20, paragraph 248), the Supreme Court states that “a biological sex interpretation would not have the effect of disadvantaging or removing important protection under the EA 2010 from transpeople (whether with or without a GRC). Our reasons for this conclusion follow. We consider protection from both direct and indirect discrimination and harassment, and equal pay”. Meaning, that a trans person can be protected from various forms of unfavourable treatment under the Act, in the form of both direct and indirect discrimination and harassment, including discrimination by association, whether or not there is a GRC.
The ruling also said that in the Equality Act 2010, the terms ‘man’, ‘woman’, and ‘sex’ which are understood to denote biological sex, and to treat sex acquired via a GRC as equivalent would create inconsistencies within the law, particularly in areas such as pregnancy and maternity. Furthermore, awarding greater rights to someone who holds a GRC would create practical issues for service providers as they are lawfully not allowed to ask if a person has a GRC.
What does this mean?
This is a complex case and scrutiny of the judgment is vital. At high level what we can take away from this ruling, is that essentially, businesses can lawfully operate workspaces such as restrooms, changing rooms in a way to restrict them based on biological sex because the finding by the Supreme Court is that term ‘woman’ under the Equality Act refers strictly to biological sex.
It is really important to emphasise, that for many, this ruling will be a significant disappointment, and we must remember that transgender employees must continue to receive workplace protection against discrimination. Gender recognition is a protected characteristic under the Equality Act 2010 and so a person must not be subjected to unfair treatment of discrimination, either directly, indirectly, or to be harassed because of their protected characteristic.
Employers are lawfully allowed to operate separate legal treatment for those with a GRC, versus those whose sex is defined by biology – however, a transgender employee must not suffer from unfair treatment.
We are reviewing the full detail of the judgement and will be providing specific guidance in this very sensitive area in due course.
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