The recent ruling of the UK Supreme Court in For Women Scotland v Scottish Ministers [2025] about the meaning of the word ‘woman’ shows how much has changed in the 15 years since the Equality Act 2010 came into force. While there has been extensive coverage in the media, this has raised numerous issues for employers.
‘The Supreme Court decision that “woman” means “biological woman” for purposes of the Equality Act may leave employers questioning if their equality, diversity and inclusion practices are still lawful,’ says Kat Moody, Associate Solicitor in our Dispute Resolution team. ‘The Equality and Human Rights Commission (EHRC) has published interim guidance and is consulting on changes to one of its statutory codes, but there are complex and difficult decisions for employers to make with little practical Government guidance available at present.’
Kat outlines the judgment, the interim guidance from EHRC, and looks at the issues that many employers will have to work through.
Background to the ruling
In 2018, a Scottish law came into force that required public bodies to take positive action to address gender imbalances on their boards. The law was accompanied by statutory guidance on the meaning of the word ‘woman’ when interpreting the new law. According to the Scottish guidance, ‘woman’ as defined under the Equality Act 2010, included a transgender woman with a gender assignment certificate under the Gender Recognition Act 2004. The Gender Recognition Act allows individuals to change their legal sex in certain circumstances (known as the individual’s certified sex) for ‘all purposes’. The effect of the Scottish law and guidance meant that transgender women could benefit from the new law and also that they were entitled to use single-sex female facilities.
A women’s rights campaign group Women Scotland challenged the definition of woman in the guidance, and this is the case which reached the UK Supreme Court.
What did the Supreme Court say?
The Supreme Court examined the language in the Equality Act 2010, and determined that the use of ‘man’, ‘woman’ and ‘sex’ in the Act could only mean biological sex, meaning the sex registered at birth and not the sex in an individual’s gender recognition certificate.
The Equality Act covers a wide range of discrimination such as maternity and pregnancy, which could only apply to a biological woman according to the Court. These provisions in the Act would be unworkable unless they were interpreted as meaning biological sex. The Court held that the interpretation has to be clear and consistent throughout the Act so that employers and service providers can understand their obligations. It would cause confusion if these key terms meant different things in different parts of the Act.
The Act applies outside employment to service and education providers, clubs, charities and associations. If the interpretation of ‘man’, ‘woman’ and ‘sex’ included certified sex, this would apply to single-sex services such as changing rooms and hostels, clubs and colleges.
The interpretation affects how the Act applies to women’s participation in sport and the armed forces, and in the public sector equality duty. Again, the Court found that including certified sex in relation to these areas would create confusion and make the Act unworkable.
As the case worked its way through the court system, a number of lesbian groups became involved because of the potential impact on the ability to keep groups and spaces exclusively for lesbians. The Court agreed that an interpretation based on someone’s certified sex could undermine the protection for other groups under the Act, as sexual orientation is another protected characteristic.
What does this mean for transgender rights?
The Court emphasised that the judgment did not mean that transgender people are not protected under the Equality Act. Gender reassignment remains a protected characteristic under the Act and those who meet the legal definition of gender reassignment are still protected from different forms of discrimination, including in the workplace.
The definition of gender reassignment covers transgender individuals who are considering gender reassignment or transitioning, and this does not require any medical intervention or treatment.
What does the Equality and Human Rights Commission say?
The EHRC is responsible for statutory codes for employers and providers to help with interpretation of the Act. It has published interim guidance in response to the judgment, which states:
- employers are required to provide single-sex toilets for staff (although the health and safety regulations are more nuanced than this); and
- if showers and changing rooms are needed, these must be single-sex.
If the workplace is open to the public:
- and where toilets or wash facilities are in a lockable room for use by one person at a time, rather than cubicles, these can be used by men or women;
- trans women (biological men) should not be allowed to use women’s facilities and trans men (biological women) should not be allowed to use the men’s facilities as this would stop them being single-sex facilities and they would need to be open to all users;
- in some circumstances, the law allows employers to exclude trans women (biological men) from men-only facilities and trans men (biological women) from women-only facilities; and
- if facilities are available for both, trans people should not be put in a position where there are no facilities for them to use.
What does this mean for employers?
The EHRC interim guidance is not binding on employers and does not offer much practical guidance, particularly on the nuanced process of weighing up the rights of one protected group against another – biological men, biological women and transgender people.
There are a number of difficult areas, including:
- employers are vulnerable to claims for trans-related discrimination when providing single-sex facilities where there are no equivalent facilities for trans staff;
- given employers’ obligations under health and safety regulations to provide single-sex toilets (unless they are in a lockable room for use by one person at a time), this is particularly difficult for employers whose premises do not have additional unisex or gender-neutral facilities and the physical space does not allow for this;
- a trans employee who has been using the facilities of their chosen gender, without objections from colleagues, could now be required to use the facilities for their sex at birth, but this would risk claims of discrimination (including harassment);
- asking an employee if they are transgender risks a discrimination claim; and
- gender-neutral toilets are often provided primarily for disabled employees. If more employees end up using them, this could have a negative impact on disabled employees, such as individuals who may need urgent access to a toilet.
Can we expect clarity soon?
Not really! Following consultation, in response to the Supreme Court judgment, the EHRC is expected to publish updates to one of its statutory codes in summer 2025. This code relates to services and associations, although some of the changes will be relevant to employers. Updates to the statutory code on employment may come later.
There are a couple of relevant cases in the employment tribunal system that could offer clarity, but only from non-binding tribunal decisions. It was also reported that the Supreme Court decision will be challenged in the European Court of Human Rights.
How we can help
We recommend acting sensitively and talking to us about any proposed changes to your arrangements and policies before implementing these. We can help you assess the risks of any changes to determine the steps that minimise the risk of legal challenge while trying not to alienate any staff members.
For further information, please contact Kat Moody on 0191 567 0465 or email [email protected]
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
