Supreme Court Decision: For Women Scotland v Scottish Ministers

The recent Supreme Court decision in For Women Scotland Ltd v The Scottish Ministers has been at the centre of debate and controversy, leaving many questions for both businesses and employers. The case centred on the legal definition of ‘woman’ (or “women”) under the Equality Act 2010 but more specifically its application to Scottish Legislation which stated that trans women (individuals who are male at birth who have transitioned to female) who possess a valid gender recognition certificate (“GRC”) should be recognised as female for the purposes of certain representation targets for women. The women’s rights campaign group, For Women Scotland Ltd (“FWS”), challenged the Scottish guidance, arguing that the definition of “woman” under the Equality Act means “biological sex”.

The Decision

The Supreme Court unanimously decided that trans individuals (even where they have GRCs) should not be treated as being of their acquired gender for the purposes of the relevant sections of the Equality Act 2010 referring to a person’s sex. According to the judgment, under the Equality Act, “man” means biological man, and “woman” means biological woman. The Supreme Court made it clear that a GRC has no effect on a person’s sex when interpreting the Equality Act.

The Supreme Court came to this decision by finding that the interpretation of sex in the Equality Act as ‘certificated sex’ would produce “unworkable, impractical, anomalous or illogical results and is unlikely to have been intended by the legislature”.

The Implications

There has been significant debate following this decision. However, the Supreme Court stressed that its decision was a matter of statutory interpretation relating to the Equality Act and not one of moral or social judgement.

The decision now gives legal clarity that, for the purposes of interpreting the rights and obligations under the Equality Act 2010, trans individuals, (with or without GRCs) will not be considered as being a member of their acquired gender when sex discrimination issues are assessed.  The Supreme Court did, however, wish to make clear that their decision did not mean that trans individuals are not protected under the Equality Act 2010, instead stressing that they would be protected from discrimination on the grounds of the protected characteristic of gender reassignment (which could include direct discrimination, indirect discrimination and harassment due to their perceived  gender as well as the fact of reassignment).

Whilst the decision was clear and well-reasoned, that does not mean that the potential implications for employers are clear or risk-free and many will be faced with difficult situations to manage. The Equality Act is so broad that the effects of the judgment are far reaching, with much of the focus around toilets and changing facilities both in workplaces and for those providing services. However, there are additional issues for employers to consider, including data protection and gender pay reporting amongst other matters. 

The Equality and Human Rights Committee (“EHRC”) issued an interim update on the practical implications of the UK Supreme Court judgment | EHRC shortly after the Supreme Court delivered its decision, stating that it is reviewing its existing guidance documents “at pace”; and aims to get its updated Code of Practice to the government for approval by the end of July 2025. Th government will then decide whether and, if so, when, to lay it before Parliament and subsequently bring it into force.

In the meantime, the EHRC advised:

‘We know that many people have questions about the judgment and what it means for them. Our updated guidance will provide further clarity. While this work is ongoing, this update is intended to highlight the main consequences of the judgment. Employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.’

The EHRC has since launched a consultation on its updated Code of Practice for Services, Public Functions and Associations [Guidance: Code of practice for services, public functions and associations: consultation 2025] which is anticipated to generate a significant number of responses before it closes on 30 June 2025. Whilst there is a separate EHRC Code of Practice for Employment, which will also need to be reviewed, there is no indication currently as to when that might happen. Therefore, the EHRC’s response to the current wider consultation will not only be pivotal for service providers, public bodies and associations, but is likely to be a useful indicator for employers more widely on what direction they can expect the Employment statutory guidance to follow.

Practical Considerations for Businesses and Employers

Although some employers may understandably wish to wait for the EHRC updated guidance before taking action, it is important to understand that their position is not risk-free in the meantime as the Supreme Court decision has immediate effect. Therefore, we set out below several of the practical implications for businesses and employers.

Employers must be acutely aware of the need to strike a balance between complying with the legal position, as clarified by the Supreme Court, and avoiding potential discrimination risks. A key challenge will involve balancing directly competing discrimination rights and obligations around sex, belief and gender reassignment in particular. Businesses and employers will need to carefully review, and possibly revise, their equality policies to ensure they fit with the Supreme Court’s decision.,

In particular, employers will need to consider carefully any single-sex facilities provided (e.g. toilets or changing rooms). As a starting point, employers must comply with health and safety legislation that requires separate sanitary facilities to be provided for men and women except where those facilities consist of separate lockable rooms (i.e. not cubicles; and with self-contained wash basin etc), in which case they may be gender neutral. Following FWS, if a transgender employee is allowed to use facilities appropriate to their acquired gender those facilities will no longer be single sex. In that scenario the health and safety requirements would not be met, and non-trans employees may also be able to bring sex discrimination claims.

On the other hand, if a transgender employee is obliged to use the facilities appropriate to their biological sex (in accordance with the Supreme Court decision) where they do not wish to do so or where this would be inappropriate (for example, where this could lead to a risk of “outing” a transgender employee) this may bring a risk of gender-reassignment discrimination.

Unfortunately, there are no “clear-cut” solutions. Further clarity may be provided by the EHRC guidance, but this will not change the legal position established by the Supreme Court decision. Employers may wish to consider making all separately self-contained and lockable toilet facilities and changing facilities gender neutral where any such physical changes to facilities can be accommodated. Consideration must also be given to disabled employees who may have valid complaints if disabled toilet facilities are changed to gender neutral facilities meaning disabled facilities may be less accessible. The way forward may well be about balance. Employers may wish to adopt a ‘pragmatic’ position after taking into account relative risks.  

Considering the judgment, many businesses and employers may decide to provide additional training to their HR teams on the detail and implications, making sure to clarify the legal definition of sex for Equality Act purposes; how to handle related workplace issues; and the rights of trans employees. As there is a clear risk of competing views (and competing discrimination risks) becoming heightened, it may also be appropriate to set out expectations for behaviours between colleagues and how/to whom any concerns should be raised. It is important to ensure that any communications issues to staff are as ‘even-handed’ as possible and do not appear to support or favour one position over another.

Please note that this commentary and any suggestions on practical steps are based on our interpretation of the statutory position immediately following the Supreme Court decision; they are not intended as legal advice. EHRC guidance is awaited in the summer and, until we get that guidance (or the government changes the law, which is not expected) the position on how best to manage issues remains largely unclear. Inevitably, this means that any issues that arise will be potentially difficult and not without risk. Each case and situation will require specific and careful consideration.