The recent and controversial ruling of the UK Supreme Court in For Women Scotland v Scottish Ministers [2025] about the meaning of the word ‘woman’ shows how much has changed in the 15 years since the Equality Act 2010 came into force. While the ruling has sparked intense public debate, it has created potentially difficult practical issues for employers.
‘The Supreme Court decision that “woman” means “biological woman” for purposes of the Equality Act may leave employers questioning if their equality, diversity and inclusion practices are still lawful,’ says Matthew Chance, a solicitor in the employment team with Furley Page LLP. ‘The Equality and Human Rights Commission (EHRC) has published interim guidance and is consulting on changes to one of its statutory codes, but there are complex and difficult decisions for employers to make with precious little in the way of helpful or practical Government guidance available at present.’
Matthew outlines the judgment, the interim guidance from EHRC, and looks at the issues that many employers will have to work through.
Background to the ruling
In 2018, the Gender Representation on Public Boards (Scotland) Act 2018 came into effect – this required Scottish public bodies to take positive action to address gender imbalances on their boards. The law initially adopted a definition of the world “woman” that was very broadly inclusive of transgender women, including those that identified as such without possessing a Gender Recognition Certificate in line with the Gender Recognition Act 2004. The Gender Recognition Act permits individuals to change their legal sex for “all purposes.” For Women Scotland, a Scottish women’s rights advocacy group, brought a challenge to this definition by way of judicial review that was ultimately successful on appeal – it was ruled that the Scottish government did not have the power to pass legislation in this area, and this power was reserved by the UK parliament. In response, the Scottish government issued supplemental statutory guidance. According to the Scottish guidance, ‘woman’ as defined under the Equality Act 2010, included a transgender woman with a Gender Recognition Certificate in line with the Gender Recognition Act. The effect of the Scottish law and guidance meant that transgender women could benefit from the new law and also that they were entitled to use single-sex female facilities.
For Women Scotland would also challenge this supplementary guidance based on what they alleged was an incorrect interpretation of the language within the Equality Act, and it is this case that ultimately made its way to the UK Supreme Court
What did the Supreme Court say?
The Supreme Court examined the language in the Equality Act 2010, and determined that the use of ‘man’, ‘woman’ and ‘sex’ in the Act could only mean biological sex, meaning the sex registered at birth and not the sex in an individual’s gender recognition certificate or alternative interpretations of sex or gender identity.
The Equality Act covers a wide range of discrimination such as maternity and pregnancy, which could only apply to a person who is biologically female according to the Court. These provisions in the Act were therefore deemed to be unworkable or contradictory unless they were interpreted as meaning biological sex only rather than a person’s sex as certified by way of a Gender Recognition Certificate or other form of gender expression. The Court held that the Act requires a single, consistent interpretation of ‘sex’ so that employers and service providers can clearly understand their obligations. It would cause confusion if terms could mean different things in different parts of the Act.
The Act applies outside employment to service and education providers, clubs, charities and associations. If the interpretation of ‘man’, ‘woman’ and ‘sex’ included certified sex or other forms of gender expression, this would apply to single-sex services such as changing rooms and hostels, clubs and colleges.
The interpretation affects how the Act applies to women’s participation in sport and the armed forces, and in the public sector equality duty. Again, the Court found that including certified sex that differs from an individual’s sex registered at birth would create confusion and make the Act unworkable as regards to these areas.
As the case worked its way through the court system, a number of lesbian groups became involved because of the potential impact on the ability to keep groups and spaces exclusively for lesbians. The Court agreed with their assertions that an interpretation based purely on someone’s certified sex or gender expression could undermine the protection for other groups under the Act, as sexual orientation – held as attraction to biological male or female anatomy – is another protected characteristic.
What does this mean for transgender rights?
The Court emphasised that the judgment did not mean that transgender people are not protected under the Equality Act. Gender reassignment remains a protected characteristic under the Act and those who meet the legal definition of gender reassignment are still protected from different forms of discrimination, including in the workplace. It is critical that any employer looking to avoid discrimination claims makes sure that they and their staff are clear on the fact that these protections remain in place despite the Supreme Court’s ruling.
The definition of gender reassignment covers transgender individuals who are considering gender reassignment or transitioning, and this does not require any medical intervention or treatment, or for them to receive or apply for a Gender Recognition Certificate.
What does the Equality and Human Rights Commission say?
The EHRC is responsible for statutory codes for employers and providers to help with interpretation of the Act. It has published interim guidance in response to the judgment, which states:
- Employers are required to provide single-sex toilets for staff (although the health and safety regulations are more nuanced than this.)
- If showers and changing rooms are needed, these must be single-sex.
If the workplace is open to the public:
- and where toilets or wash facilities are in a lockable room for use by one person at a time, rather than cubicles, these can be used by men or women.
- Trans women (a person who expresses as female but was born a biological male) should not be allowed to use women’s facilities and trans men (a person who expresses as male but was born a biological female) should not be allowed to use the men’s facilities as this would stop them being single-sex facilities and they would need to be open to all users.
- In some circumstances the law allows employers to exclude trans women (biological men) from men-only facilities and trans men (biological women) from women-only facilities. While the guidance is not entirely clear on when these circumstances arise – employers and other impacted entities should for the moment use their best judgement to preserve the safety and dignity of all affected parties as best as possible.
- If facilities are available for both biological men and biological women, trans people should not be put in a position where there are no facilities for them to use.
What does this mean for employers?
The EHRC interim guidance is not binding on employers and does not offer much practical guidance, particularly on the nuanced process of weighing up the rights of one protected group against another – biological men, biological women and transgender people.
There are a number of difficult areas, including:
- employers are vulnerable to claims for trans-related discrimination when providing single-sex facilities where there are no equivalent facilities for trans staff;
- given employers’ obligations under health and safety regulations to provide single-sex toilets (unless they are in a lockable room for use by one person at a time), this is particularly difficult for employers whose premises do not have additional unisex or gender-neutral facilities and the physical space does not allow for this;
- a trans employee who has been using the facilities of their chosen gender, without objections from colleagues, could now be required to use the facilities for their sex at birth, but this would risk claims of discrimination (including harassment);
- asking an employee if they are transgender risks a discrimination claim; and
- gender-neutral toilets are often provided primarily for disabled employees. If more employees end up using them, this could have a negative impact on disabled employees, such as individuals who may need urgent access to a toilet.
Can we expect clarity soon?
Unfortunately the situation is likely to remain somewhat murky for some time as the EHRC struggles to adjust to the new status quo. Following consultation, in response to the Supreme Court judgment, the EHRC is expected to publish updates to one of its statutory codes in summer 2025. This code relates to services and associations, although some of the changes will likely be relevant to employers and may be implemented if and when codes for employers are also updated.
There are a couple of relevant cases in the employment tribunal system that could offer clarity, but only from non-binding tribunal decisions. It was also reported that the Supreme Court decision will be challenged in the European Court of Human Rights, which may change the status quo once again.
However, regardless of how the situation develops, it is paramount that employers recognise that discrimination protections for transgender individuals remain in force from the very beginning of employment and during recruitment processes, as previously mentioned. This is all but certain not to change in the foreseeable future – as such employers must take pains to not treat any transgender individual less favourably than another individual on the grounds that they are transgender.
How we can help
We recommend acting cautiously and sensitively, and consulting us before implementing any proposed changes to your company’s policies or procedures. We can help you assess the risks of any changes to determine the steps that minimise the risk of legal challenge while trying not to alienate any staff members.
For further information, please contact Matthew Chance in the employment team on 01227 763939.
