d&i Leaders Equality Law Update
For Women Scotland v The Scottish Ministers: The decision and why it matters
By Rupa Mooker on 23 April 2025
Background
The case of For Women Scotland v The Scottish Ministers has been watched closely by many, not just in Scotland but across the UK. At its heart, the case is about how the word “sex” should be interpreted in law and whether the Scottish Government acted lawfully when it included trans women with Gender Recognition Certificates (GRCs) in a legal definition of “woman.”
To understand the case, we need to go back a few years. In 2018, the Scottish Government passed the Gender Representation on Public Boards (Scotland) Act. The purpose of this law was to improve gender balance on public boards which are bodies that run services such as the NHS, colleges, and other public organisations. The law aimed for at least 50% of non-executive members on these boards to be women. The Scottish Government also published guidance to help public bodies apply this law with the guidance stating that the definition of “woman” included a person whose “acquired gender is female” under the UK’s Gender Recognition Act 2004.
For Women Scotland, a feminist voluntary organisation which campaigns to strengthen women’s rights and children’s rights in Scotland argued that the Scottish Government was redefining “woman” in a way that the law didn’t allow. They said that it conflated sex and gender identity and exceeded the Scottish Parliament’s legislative competence, as equality law is reserved to the UK Parliament. For Women Scotland Ltd brought a legal challenge which has worked its way through the courts, ending up in the Supreme Court, the highest court, and the final court of appeal, in the UK for civil cases.
What was the Supreme Court’s decision?
On 16th April 2025, the Supreme Court decided that only biological women are women for the purposes of the Equality Act 2010 (EA 2010). It held that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex as “as any other interpretation would render the EA 2010 incoherent and impracticable to operate”.
In the summary of the Court’s reasons for its judgment, it states “as a matter of ordinary language, the provisions relating to sex discrimination can only be interpreted as referring to biological sex. For example, the provisions relating to pregnancy and maternity (sections 13(6), 17 and 18 of the EA) are based on the fact of pregnancy and giving birth to a child. As a matter of biology, only biological women can become pregnant. Therefore, these provisions are unworkable unless “man” and “woman” have a biological meaning. Interpreting “sex” as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way. It is important that the EA 2010 is interpreted in a clear and consistent way in order that groups which share a protected characteristic can be identified by those that the EA 2010 imposes obligations on so that they can perform those obligations in a practical way.”
The Supreme Court held that a person with a GRC in the female gender does not come within the definition of a “woman” under the EA 2010 and “the statutory guidance issued by the Scottish Ministers is incorrect.” The Court also stated that “this interpretation of the EA 2010 does not remove protection from trans people, with or without a GRC. Trans people are protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex.”
Implications for transgender rights
While the Court acknowledged that transgender individuals are protected under the characteristic of gender reassignment, the ruling has significant implications for transgender individuals in the UK. In short, by defining “sex” strictly as biological, the decision affects how transgender people are recognised under the EA 2010, particularly concerning access to single-sex spaces and services.
Trans rights groups have expressed concern that this decision could lead to increased discrimination and exclusion of transgender individuals from public life. They argue that the ruling undermines the legal recognition afforded by the Gender Recognition Act and could have broader implications for equality and human rights protections.
Perspectives from advocates of the biological sex definition
Supporters of the ruling view the decision as a reaffirmation of the importance of biological sex in law. They argue that recognising sex based on biology is essential for protecting women’s rights, particularly in areas like sports, healthcare, and single-sex spaces. These groups contend that conflating sex with gender identity can erode the protections intended for women under the EA 2010.
Political and institutional responses
The ruling has prompted varied responses from political leaders and institutions. Some politicians have welcomed the clarity provided by the Court, suggesting it resolves ongoing debates about the interpretation of sex in law. Others have called for legislative action to ensure that transgender individuals continue to receive appropriate protections and recognition.
Public bodies and service providers are also assessing the implications for their policies and practices, particularly concerning the provision of single-sex services and facilities.
It is worth noting that the Scottish Government confirmed its approach was guided by the published guidance of the Equality and Human Rights Commission (EHRC). The Government also stated it “will engage with the EHRC as a matter of urgency on the need to review their guidance considering this judgment.”
Responding to the judgement, the EHRC’s Chairwoman, Baroness Kishwer Faulkner said: “This judgment from the Supreme Court has significant implications for the interpretation of Britain’s equality laws. We welcome the clarity this ruling brings; its importance to those whose rights are affected under the Equality Act cannot be overstated.”
The EHRC has confirmed it is “working at pace” to update its guidance, which “subject to ministerial approval, is expected to be laid before Parliament before the summer recess.” Speaking on BBC Radio 4’s Today programme, Baroness Faulkner made it clear that if a single-sex space, like a toilet or changing room, is women-only, that means biological males who identify as women should not use it. Instead, trans people should use their “powers of advocacy” to campaign for third spaces, such as unisex toilets.
Health service guidance on single-sex wards currently says that “trans people should be accommodated according to their presentation, the way they dress, and the name and pronouns they currently use” meaning that trans women are to be offered beds on women-only wards. However, the NHS has said its policy is under review with the EHRC confirming it will pursue the NHS if it does not follow the Supreme Court’s ruling.
What next?
The Supreme Court’s decision marks a significant moment in the ongoing discourse about sex, gender, and legal recognition in the UK. By affirming that the EA 2010 references to “sex” pertain to biological sex, the Court has clarified the legal framework but also highlighted the complexities involved in balancing rights and protections for different groups.
Employers should therefore review their policies and processes to consider whether any of the wording needs to be updated to reflect the Court’s decision as well as ensure they are operating a diverse and inclusive working environment. It is also vital to check in with employees and colleagues to remind them of any support measures in place, particularly for those who have been affected by the ruling. HR teams may require training so that they can navigate this new legal landscape confidently and respectfully.
This case was never just about one piece of legislation. It reflects deeper tensions in society about identity, inclusion, and how the law should protect different groups. The Court specifically counselled against reading this judgment as a triumph of one or more groups in our society at the expense of another. As society continues to navigate these issues, further legal, political, and social developments are likely to unfold and it is important to approach these with continued understanding and respect.
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