On 16 April 2025, the Supreme Court determined that, under the Equality Act 2010 (the Act), references to ‘woman’ and ‘sex’ mean a biological woman and biological sex.
The Supreme Court confirmed that even if a person has a Gender Recognition Certificate, this will not change their biological sex for the purposes of the Act. The Equality and Human Rights Commission (EHRC) have noted that the decision means that, for the purposes of the Act, a trans woman is a biological man, and a trans man is a biological woman.
The background to the case
The case stemmed from For Women Scotland (a Scottish feminist campaign group) challenging the Scottish Government’s guidance on the Gender Representation on Public Boards (Scotland) Act 2018.
This act aimed to increase female representation on public boards so that at least 50% of non-executive members on the boards were women. On 19 April 2022, the Scottish Government published amended guidance to help public bodies apply the law. The guidance stated that a ‘woman’ had the same meaning as set out in the Act and the Gender Recognition Act 2004 and therefore included transgender women with a Gender Recognition Certificate. For Women Scotland challenged the guidance in the Court of Session, arguing that the definition of a ‘woman’ should be restricted to a biological woman only and should not include trans women who have a Gender Recognition Certificate.
After the guidance was upheld in the Court of Session, For Women Scotland appealed to the Supreme Court where they were successful.
The EHRC’s interim guidance
The EHRC have recently published interim guidance covering some of the practical consequences of the decision, which has a particular focus on the duties of organisations to provide single-sex facilities in the workplace and in public. The House of Lords have described this guidance as “a snapshot reflection rather than full guidance”.
The guidance is not legally binding, and the courts and tribunal will not be required to take it into account.
The EHRC have acknowledged that the decision has sparked many questions, and they are working on updating their statutory and non-statutory guidance. A two-week consultation is set to be launched in mid-may to focus on how the practical implications of the decision can be best reflected in the updated guidance.
The House of Lords also confirmed, following their debate on 1 May 2025 on the interim guidance, that they will shortly be meeting with the EHRC’s chair to discuss its approach to developing an updated statutory code of practice. The updated statutory code, once published, will have legal status.
Public response
Following the decision there has been a vast amount of commentary regarding calls for the withdrawal of the EHRC’s guidance and challenging the judgment. In particular, Victoria McCloud, the UKs first known trans judge, is reportedly bringing action against the decision on the basis that it is an infringement of her human rights. The future of the decision, therefore, remains somewhat uncertain; we will continue to keep you informed of any substantial updates.
If you have any questions on how the guidance or the judgment might affect your workplace, or you need assistance with any other employment matter, please do get in touch with a member of the Employment team.
We publish blogs and social media posts to give a general overview of legal and commercial issues, relevant at the time of publication, which we hope you will find interesting. Please note that legal rules often change depending on the specific facts of a situation. The law also changes over time following changes in legislation or new court cases. We do not actively update our blogs or posts once they are published to reflect changes in the law.
As such, our blogs and posts are not intended to advise you on the law and must not be relied upon as legal advice. If you require advice on a particular issue then please contact us and we will be pleased to help.
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