On 16th April 2025, the Supreme Court handed down their judgement in the case of ‘For Woman Scotland v Scottish Ministers’.
Their judgement stated that, for the purposes of the Equality Act, the terms “man”, “woman” and “sex” referred to biological sex.
An official summary of the judgement can be found here.
Background
The appeal arose in response to statutory guidance on the meaning of the term “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 (ASP 2018).
This legislation created gender representation targets to increase the proportion of women on public school boards in Scotland.
The original accompanying statutory guidance to the ASP 2018 defined the term “woman” as including people (i) with the protected characteristic of gender reassignment; (ii) living as a woman; and (iii) proposing to undergo / undergoing / who have undergone a gender reassignment process. It was later ruled that this statutory interpretation was unlawful.
Scottish ministers subsequently issued new statutory guidance stating that, under the ASP 2018, the definition of a woman is the same as that in the Equality Act (which defines “woman” as “a female of any age”). This guidance also stated that a person with a Gender Recognition Certificate (GRC), recognising their gender as female, would be considered a woman for the purposes of the ASP 2018. It is this guidance which is under challenge in this appeal.
Judgement
The Supreme Court judgement states that, for the purposes of the Equality Act, the terms “man”, “woman” and “sex” refer to biological sex, and that any other interpretation would render the Equality Act incoherent and impracticable to operate.
The Supreme Court ruled that a GRC will not change a person's legal sex for the purposes of the Equality Act. This means that, under the Act:
- a ‘woman’ is a biological woman (a person born female)
- a ‘man’ is a biological man (a person born male)
- a trans woman is a biological man
- a trans man is a biological woman
The Supreme Court Justices argued this was the only consistent, coherent interpretation. Their justification was that the provisions in the Act relating to sex discrimination could only be interpreted as referring to biological sex. For example, the provisions relating to pregnancy and maternity are based on the fact that only biological women can become pregnant.
The Supreme Court also argued that any interpretation other than one based on biological sex could cause confusion and impracticability in relation to other parts of the Act, such as the provision of single and separate sex services.
Workplace Implications
Workplaces across the UK are reviewing their gender-related policies in light of the recent Supreme Court judgement.
One area of considerable debate is the provision of single-sex facilities, such as toilets and changing rooms.
The boss of Barclays has confirmed that the company is banning trans women from using female toilets following the Supreme Court ruling, and many other organisations are following suit.
Workplace Regulations require most workplaces to provide single-sex toilets for their employees, as well as washing and changing facilities if appropriate.
For a space to be lawfully designated for one sex only, it must satisfy certain conditions outlined by the Equality Act. Generally speaking, these conditions include situations in which inclusion of the other sex would be inappropriate.
If an employer designates a space as “single sex” and then states in its policies that certain people of the other sex can enter, the space automatically fails to meet these conditions. Facilities marked for the use of one sex can only be used by that sex with no exceptions. The signs on the doors of workplace toilets are health and safety signs, just as fire safety and hazardous substances signs are. Failure to enforce correct use of these facilities deprives employees of the single-sex provision they are entitled to under workplace regulations.
It is the employer’s job to enforce this, not the employees. Employers have a responsibility to communicate and enforce their policies and ensure that men are not using the women’s facilities (and vice versa).
The Supreme Court judgment therefore means that all employers need to make it clear in their policies that when a space is marked as being for one sex, it is not for use by members of the opposite sex, regardless of how an individual chooses to identify. The notion that an individual may choose to use the facilities that suit their gender identity is legally incorrect.
Enforcing the single-sex use requirement is unlikely to give grounds for a trans person to bring a legal complaint. This is because of a specific exemption in the Equality Act that covers action taken to comply with the health and safety regulations.
It may however cause trans employees’ distress and so any enforcement steps should be taken with utmost sensitivity, and employers should consider ways to provide some accommodation for trans people in the workplace, whilst still maintaining adequate single sex provision. Many employers are providing gender neutral toilets.
While the Supreme Court judgment determines the legal position, it does address the question of how, practically, organisations should police who is using which toilet. Normally this is in practice self-policed, but employers will need to address this if complaints are made.
In the short term, employers may need to resolve such issues via workplace mediation to identify a resolution that respects the needs of different protected groups.
Future Change
The Supreme Court is the highest court of appeal in the UK, which means that no further appeal against this decision is possible in the UK courts.
There has been speculation that a challenge may be brought at the European Court of Human Rights on the basis that the law, in light of the recent Supreme Court ruling, is incompatible with the protection of trans rights under the European Convention on Human Rights. This is because the Equality Act is enforced by the European Court of Human Rights.
In the meantime, any change to the definition of sex for the purpose of the Equality Act would require new legislation to be passed by Parliament.
