Supreme Court ruling – ‘Sex’ and The Equality Act 2010

In the case of For Women Scotland v The Scottish Ministers, a campaign group challenged statutory guidance issued by the Scottish government which set targets for increasing the proportion of “women” on public boards. The contested effect of that statutory guidance had been that a Gender Recognition Certificate recognising a person’s gender as “female” would have brought them within the definition of “woman” within the Equality Act 2010. 

This was an appeal to the Supreme Court by For Women Scotland, who had previously unsuccessfully challenged the lawfulness of the statutory guidance in two levels of the Scottish Courts in 2022 and 2023.  The judgment therefore impacts the law across the UK, not just in Scotland. 

In its ruling on 16 April 2025, the Supreme Court clarified that the terms “woman” and “sex” under the Equality Act 2010 mean “biological woman” and “biological sex”, not gender or sex acquired or certificated through a Gender Recognition Certificate.  It is also important to note that the judgment is limited to these definitions in the Equality Act 2010, not the broader usage of gender or sex related terminology.

Key Points for those subject to the Equality Act 2010

Employers, service providers, education bodies and public authorities (amongst others) have various responsibilities under the Equality Act 2010. The Act sets out what constitutes unlawful conduct, including in the form of discrimination, harassment and victimisation. The judgment impacts on how these key concepts under the Equality Act 2010 operate. A wide range of different issues and organisational functions need to be considered following the judgment. For example:

• The operation of single sex facilities and services, such as bathrooms; changing rooms; hospital wards; health and social care services; accommodation; as well as single-sex higher education institutions;
• The approach to the Public Sector Equality Duty and Equality Impact Assessments;
• How to balance competing interests in an employment context, for the protected characteristic of religion or belief on the one hand and gender reassignment on the other; and
• Membership of single-sex associations.

Organisations should remember that transgender people will continue to be protected from discrimination through the protected characteristic of “gender reassignment” under section 7 of the Equality Act 2010. In addition, transgender people are able to pursue discrimination, harassment and victimisation claims on the basis of associative and/or perceived gender, whilst individuals who hold Gender Recognition Certificates have additional privacy rights, restricting the use of information about their previous gender.

As a starting point, organisations will want to review their operational functions as well as their policies and procedures to ensure they accurately reflect the law, whilst balancing the competing rights of all groups. Any changes will need to be applied sensitively, which means consulting (where appropriate) and carefully considering opinions and concerns. This may be particularly challenging for organisations which offer single sex services or spaces, as this issue has already divided views. However, employers in particular will need to remember that ALL employees need to feel comfortable and safe, meaning that consideration needs to be given to the range of facilities and spaces offered. In addition, investing time and resources for effective policy monitoring will be the key to ensuring your organisation is achieving its aims, as well as helping to instil trust and transparency within the workplace.   Similarly, service providers who offer any kind of single sex service will want to carefully risk and equality impact assess how they offer those services. Organisations should also consider the impact on service users and members of the public.

We encourage organisations to act carefully rather than quickly, by beginning open and compassionate communication, particularly with those affected by the ruling.  The Equality and Human Rights Commission has indicated that it will issue updated guidance in the coming months. Employers may wish to signpost to employee support contacts or an employee assistance programme/helpline. Managers should receive training so they are fully aware of the ruling and its implications. In addition, the training should provide managers with the tools to be able to answer difficult questions, as organisations run the risk of causing unintentional offence or fuelling anxiety if individuals feel unsupported, which can happen when questions are not answered, or the answers given are misleading and/or vague. 

The ruling does not change the fact that it remains advisable for organisations to promote inclusivity, and failure to do so may result in grievances and discrimination claims, as well as sickness absence issues, poor productivity, loss of talent and difficulties with recruitment.  Public authorities will of course also need to ensure they continue to comply with the Public Sector Equality Duty.

Recommended next steps

Organisations will want to carefully consider and seek expert advice on a range of points arising from this decision, including:

1. Reviewing operations, policies and procedures. This includes paying careful attention to terminology and definitions;
2. To the extent you operate single sex facilities and services, carefully consider the legal basis for the same and the future approach to this;
3. Considering the extent to which you wish to publish an acknowledgment of the Supreme Court decision noting an inclusive approach as an organisation and any support available, signposting where appropriate;
4. High-level board briefings;
5. The approach to Equality Impact Assessments of services and policies;
6. Supporting managers in navigating sensitive conversations; and
7. Delivering training to HR, management and Equality and Diversity teams who are most likely to engage in such discussions. 

How can we help?

We are highly experienced in supporting employers to navigate complex and sensitive employee relations conversations involving complex gender identities, gender reassignment and single-sex spaces. If you would like further information or support on any of the key actions above, please contact our experts Courtney Janotta, Jodie Sinclair, Alastair Currie, or Sarah Lamont  who will be happy to help. 

We also advise service providers, education bodies and public authorities on the Equality Act 2010, including on the balancing of different interests, positive action, the Public Sector Equality Duty and Equality Impact Assessments.  If you would like further information or support on this please contact Virginia Cooper or Amy Tschobotko.