By Neil Todd Member, Trade Union Lawyer
and Jo Seery Professional Support Lawyer
What the decision says, and what it doesn’t- moving past the rhetoric
The Supreme Court has handed down its long- awaited judgment in For Women Scotland Ltd v The Scottish Ministers (2025 UKSC 16) which considered the central question as to how the terms “woman”, “man” and "sex" in the Equality Act 2010 (EqA) should be interpreted. In an 88- page judgment the Supreme Court held that as a matter of statutory interpretation the terms refer to a person’s biological sex.
The case was brought by For Women Scotland challenging the lawfulness of statutory guidance on the definition of “woman” under the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act). The Act set out a target for increasing the representation of women on public boards. The Guidance stated that “woman” under the 2018 Act was the same as that set out in the Equality Act 2010 and in addition also included a person with a Gender Recognition Certificate (GRC) recognising that their gender is female.
The Inner House in Scotland held that the guidance on the 2018 Act was lawful because a person with a GRC in the female gender is a woman for the purposes of the Equality Act 2010. For Women Scotland appealed against this decision to the Supreme Court.
The Legal Definitions
Section 9(1) of the Gender Recognition Act 2004(GRA) provides that when a full GRC is issued to a person, the person’s gender becomes their acquired gender so that if the acquired gender is female the person’s sex becomes that of a woman. Section 9(3) provides that section 9 (1) applies unless other legislation explicitly or implicitly states otherwise.
Section 7 of the EqA 2010 states that “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
Section 11 provides that the protected characteristic of sex is a reference to a man or woman.
Section 212 states that “man” means a male of any age and “woman” means a female of any age.
There is no provision in the EqA 2010 which addresses the effect of section 9 (1).
The key issue in the case the Court had to determine was whether references in the EqA 2010 to a persons’ “sex”, “man” and “woman” had to be interpreted in light of s. 9 (1) of the GRA 2004 as including persons who have an acquired gender though the possession of a GRC (“certificated sex”).
Key points from the judgment
- Statutory Interpretation
The court's primary role was to interpret statutory language, not to determine policy or social arguments about gender identity. It considered that in the absence of a provision in the EqA 2010 which addresses the effect of s. 9 (1) of the GRA, the proper approach was to undertake an analysis of all the provisions of the EqA taking into account its purpose and context, to determine whether a biological meaning of sex is intended or if the definition should be based on certificated sex. In doing so it weighed up whether a certificated sex approach would work in practice and whether a biological sex interpretation would remove protection from transgendered persons with a GRC.
- Biological Sex vs. Certificated Sex
The Court rejected an argument that different meanings to sex, man and woman could be applied to different sections of the EqA. To apply this approach would create legal uncertainty. It concluded that within the context of the EA 2010, the terms "sex," "man," and "woman" refer to biological sex rather than certificated sex.
- Pregnancy and Maternity Provisions
In the Court’s view the provisions relating to pregnancy, maternity leave, and related protections are unequivocally based on the fact of pregnancy and giving birth to a child. Only biological women can become pregnant, breastfeed, or experience maternity, so these rights and protections exclude biological males, irrespective of holding a GRC. The court ruled that a certificated sex interpretation here would lead to incoherence and impracticalities.
- Group-based Rights and Protections
The court expressed the view that many EA 2010 provisions rely on the ability to clearly identify groups of people based on shared biological or societal experiences. They held that interpreting "sex" as biological is critical to ensuring clarity and effectiveness in applying protections against indirect discrimination and enabling positive actions aimed at addressing specific inequalities.
- Practical Consequences for Employment and Services
For practical reasons, such as privacy and safety in single-sex spaces, prisons, hospital wards, communal accommodation, and sports, the Court found it necessary that "sex" refers to biological sex. Treating "sex" as certificated sex in these contexts would be unworkable, creating confusion and undermining the Act’s protections and objectives. They noted that requiring a person to produce a GRC which is confidential to that person is unworkable in many practical scenarios.
- The Public Sector Equality Duty
The requirement on public authorities under section 149 of the EA 2010 to have due regard to the need to advance equality of opportunity between people with and without protected characteristics is concerned with the same sort of group disadvantage as applies to indirect discrimination. This depends on an employer being able to anticipate that a provision criterion or practice disproportionately impacts on a particular protected characteristic. By contrast a certificated sex approach would create inequality between those who share the protected characteristic of gender reassignment with a GRC and those who do not in circumstances where there is no obvious means of distinguishing between the two.
Practical and legal implications of the judgment
This judgment carries important implications for employment law and beyond.
The Court concluded that its biological interpretation of sex under the Equality Act 2010 does not remove important protections from discrimination for transgendered people with or without a gender recognition certificate. As well as tailored protection against discrimination specifically related to gender reassignment, transgendered people are also protected from direct discrimination, indirect discrimination, harassment and victimisation.
The Equality and Human Rights Commission is working on updating both its statutory and non-statutory guidance.
Until then employers should negotiate with Trade Unions in order to ensure that all workers feel supported and valued in the workplace and that they do not fall into the “Trump Trap” of pulling away from inclusive diversity and equality initiatives
Further details and analysis will be in a future edition of ELR
