For Women Scotland: Supreme Court Rules on the Meaning of Sex in the Equality Act 2010

The appeal arose from statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018, which sets targets for women on Scottish public boards. The guidance said that a person with a GRC recognising their gender as female is a woman for the purposes of that Act. The Outer House and the Inner House of the Court of Session had rejected the challenge, according to the case page.

The Court's reasoning

The judgment turns on the interaction between section 9 of the Gender Recognition Act 2004, under which a GRC holder's acquired gender applies "for all purposes" unless another enactment provides otherwise, and the Equality Act 2010. The Court held that section 9(3) applies where the terms, context and purpose of legislation show a clear incompatibility or would make its provisions incoherent or unworkable. Looking at the 2010 Act, it found that provisions on pregnancy and maternity, separate and single-sex services, communal accommodation, single-sex associations and charities, sport, the public sector equality duty and the armed forces only work coherently on a biological reading. It rejected the idea that "sex" could mean biological sex in some sections and certificated sex in others: the meaning must be consistent throughout.

Protection that remains

The Court stressed that its interpretation does not remove protection from trans people, with or without a GRC. They remain protected against discrimination on the ground of gender reassignment, and can rely on the provisions on direct discrimination, harassment and indirect discrimination on the basis of sex; on existing case law, a trans woman can claim sex discrimination because she is perceived to be a woman.

What it means for employers and service providers

After For Women Scotland, organisations that rely on the Equality Act's sex-based provisions, such as single-sex services, communal accommodation, single-sex associations or the public sector equality duty, must apply them by reference to biological sex. Employers, public bodies and service providers in England, Wales and Scotland will want to review policies on changing rooms, hostels, communal accommodation and single-sex roles, while maintaining the separate protections against gender reassignment discrimination and harassment.

Sources

• UK Supreme Court: Press summary, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16
• UK Supreme Court: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent), case UKSC/2024/0042