On 16 April 2025, the UK Supreme Court (UKSC) handed down its judgment in the case of For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, in which it considered the definition of a “woman” in the context of the Equality Act 2010 (EqA 2010). In this article, we provide an overview of the judgment and discuss its impact.

Case background

Following the publication of statutory guidance by the Scottish Government, For Women Scotland Ltd (FWS) – a Scottish women’s rights campaign group – petitioned for judicial review on the basis that the guidance was unlawful. In its guidance, the Scottish Government interpreted the definition of “woman” to include transgender women with a Gender Recognition Certificate (GRC). However, FWS maintained that the Scottish Government’s interpretation was incorrect.

FWS’s petition was dismissed in 2022, and its subsequent appeal of that decision was also refused in 2023. Broadly, it was held that, according to existing law, a person’s gender as stated on their GRC became their gender for all purposes. It followed, according to the court, that the definition of “woman” was not limited to biological sex for the purposes of the EqA 2010 and instead included transgender women with a GRC.

FWS appealed the decision to the UKSC, arguing that reference to a “woman” in the EqA 2010 should be taken to be a reference only to a biological woman (i.e. someone born biologically female) and not a transgender woman who holds a GRC.

UKSC Judgment

On 16 April 2025, the UKSC unanimously upheld the FWS’s appeal, deciding that the terms “man”, “woman”, and “sex” in the EqA 2010 relate to biological sex and not “certified” sex (meaning that stated on a GRC). Below is a summary of the UKSC’s judgment.

• Clarity and consistency about how to identify relevant groups that share a “protected characteristic” are essential to the practical operation of the EqA 2010.
• It is important that the protected characteristic of “sex” can be interpreted in a way that is “predictable, workable and capable of being consistently understood and applied in practice”.
• The definition of “sex” in the EqA 2010 makes clear that the concept is binary. An interpretation based on “certified” sex would be incoherent. Further, it would be problematic to effectively divide transgender people into two groups based on whether they have a GRC or not.
• Transgender women who hold a GRC are therefore not included in the definition of “woman” for the purposes of sex discrimination in the EqA 2010.
• It followed that the revised statutory guidance issued by the Scottish Government was incorrect; the definition of “woman” did not include transgender women who hold a GRC.

Impact

The UKSC stressed that its decision only concerned whether transgender women with a GRC should be included in the category of “woman” for the purposes of the EqA 2010; transgender people continue to be protected from discrimination under the protected characteristic of “gender reassignment”.

However, the UKSC acknowledged that the case concerned issues over which there is ongoing and extensive public debate. The UKSC judgment is likely to have wide-reaching practical implications, for example in an employment context, and implementing the decision will present a significant challenge for many organisations.

Implications for employers

On 25 April 2025, the Equality and Human Rights Commission (EHRC) published its interim update, which highlighted the main practical consequences of the UKSC judgment. The EHRC’s intention was to provide clarity while it works on more comprehensive guidance. It is worth noting that the EHRC’s interim guidance is non-statutory, meaning that courts and tribunals are not obliged to take it into account.

In its guidance, the EHRC stressed the importance of employers following the law and taking specialist legal advice where necessary. Key points from the interim guidance are below.

1. Meaning of “woman” and “man”.

For the purposes of the EqA 2010:

• A “woman” is a biological woman or girl (i.e. a person born female), and a “man” is a biological man or boy (i.e. a person born male).
• Someone who identifies as transgender does not change sex, even if they have a GRC. Therefore, a trans woman is a biological man, and a trans man is a biological woman.

2. Single-sex facilities

• Workplaces – The EHRC confirmed that sufficient single-sex toilets must be provided in workplaces (as well as sufficient single-sex changing and washing facilities where needed).
• Services – In the context of services which are open to the public (such as hospitals, shops, restaurants and leisure centres), single-sex facilities are not compulsory if the absence of such facilities is a “proportionate means of achieving a legitimate aim”. However, it could be indirect discrimination against women if only mixed-sex facilities are provided.

The EHRC advised that, in relation to workplaces and services open to the public, trans women should not be permitted to use the women’s facilities (and vice versa). However, trans people should not be put in a position where there are no facilities for them to use.

3. Mixed-sex facilities

Where possible, mixed-sex facilities should be provided in addition to single-sex facilities. Lockable toilet, washing or changing facilities intended for use by one person at a time, can be used by either women or men (note that this does not include cubicles within shared toilet facilities).

4. Occupational requirements

If an employer has a general occupational requirement for the person holding a role be a particular sex, they will legally be able to exclude trans people from that role, even if they hold a GRC. This may apply, for example, to a requirement that a warden in a women’s hostel is a woman.

The EHRC’s interim update and guidance has been described by the government as, “a snapshot reflection, rather than full guidance”, and the EHRC is expected to consult widely and submit a draft of its updated statutory code of practice by the end of June 2025 for ministerial approval. The EHRC’s updated code of practice will provide further clarity on the full practical implications of the UKSC judgment.

Policies

Employers will need to review and, where necessary, update their existing policies and procedures to ensure they align with the UKSC judgment. Failure to do so could leave employers exposed to claims in the Employment Tribunal.

If you require expert employment advice, or assistance with updating your existing workplace policies, please contact a member of our Geldards Employment Team who would be happy to help.