The Decision

For Women Scotland is a women’s rights organisation. The case was the organisation’s second challenge to the Scottish Government’s guidance on the definition of a “woman” for the purpose of the Gender Representation on Public Boards (Scotland) Act 2018. This legislation seeks to address gender disparity on the boards of certain public authorities in Scotland by setting an objective of 50% representation of women in non-executive roles. The guidance deferred to the EHRC’s interpretation of a “woman” under the Equality Act at the time. On that view, the definition of a “woman” was to be read in line with the Gender Recognition Act 2004 to include a trans woman who holds a gender recognition certificate (GRC). [2]

The UK Supreme Court (Court) disagreed. It ruled that the words “sex”, “woman” and “man” under the Equality Act mean biological sex, biological woman and biological man. It’s important to note that the only question the Court had to determine was the meaning of those words when used in the Equality Act (i.e., what Parliament’s intention was in making that legislation).

The Court approached its analysis by reviewing the myriad of contexts in which the words are used in the Equality Act. A few key areas illustrate its conclusion:

1. The protections relating to pregnancy and maternity leave would “not be workable” if “woman” included a trans woman with a GRC and vice versa – as this would mean that a trans man with a GRC who is pregnant would not benefit from those protections.
2. The Court could not see a reason why Parliament would have intended that trans people who hold a GRC should be treated differently under the Equality Act to those without a GRC, given that there may not be any distinction in their personal characteristics or how they are perceived by others (particularly when it’s not possible to demand a copy of a GRC).
3. The protections as they relate to sexual orientation would not be workable, because a person’s sexual orientation would change on acquiring a GRC. For example, a trans woman with a GRC attracted to women would be treated as a lesbian, but a trans woman without a GRC attracted to women would not. This, the Court concluded, would also unsatisfactorily result in ‘lesbian-only’ associations not being able to deny admission to trans women with a GRC who are attracted to women (the lesbian rights groups involved in the case expressed considerable concern with this).

The Court concluded that the Equality Act protections were only “coherent and understandable” if a biological understanding of sex is used as the definition. They rejected the possibility of the terms having different meanings in different parts of the Equality Act.

However, the Court was careful to express that trans people still maintain important protections under the Equality Act (see the ‘Discrimination’ bullet point in the heading below). Nonetheless, the decision has caused widespread debate around what this means for trans people’s rights and the practical ramifications for public services, sporting bodies, schools, associations and employers and employees in the workplace.

In an attempt to address the unrest caused over the decision and to provide clarity, the EHRC shared interim guidance setting out the practical implications of the judgment [3]. However, this has left legal professionals and commentators questioning whether aspects of that guidance are correct and whether it provides an effective guide to employers, service providers and relevant others. An updated Code of Practice is anticipated in early summer.

What does this mean for employers?

Single-sex spaces

• The precise legal implications of the case are still unclear, particularly in the case of single-sex spaces. The EHRC guidance states that employers must provide sufficient single-sex toilets (as well as sufficient single-sex changing and washing facilities where required) and that trans men should not be permitted to use the male facilities, and trans women should not be permitted to use the female facilities (as this would mean that they are no longer “single-sex” spaces). It goes on to state that trans people could also be precluded from using the facilities of their biological sex in certain situations (which is a thorny area we deal with below), although they should not be put in a position where there are no facilities for them to use, meaning that (where possible) mixed-sex facilities should also be provided.
• There is nothing in the Equality Act which requires employers to provide single-sex toilets/facilities. The Workplace (Health, Safety and Welfare) Regulations 1992 require separate toilets (and changing facilities and certain washing facilities) to be provided for ‘men and women’, save broadly where each toilet/facility is in a separate room lockable from the inside. [4] While the judgment was not concerned with the definitions of men and women for the purpose of that legislation, it would seem to follow that the Court’s interpretation of such terms for the purposes of the Equality Act would apply to this legislation (which seems to be the view the EHRC has taken).
• The best solution therefore seems to be to provide mixed-sex toilets with stand-alone, lockable rooms (as opposed to cubicles). However, this could of course be a significant cost to businesses and/or may not be possible.
• At that point, employers are faced with the risk of discrimination and harassment-based claims from all sides. For example, a strict biological approach to toilets may result in trans people bringing claims based on the protected characteristic of gender reassignment if they cannot use the toilets of their choice; on the other hand, allowing trans people to use their preferred toilets risks claims from people who do not want to share their single-sex toilets with a trans person. Indeed, harassment claims could be made by other users even where a trans person is not using their preferred toilets.
• With risks of claims either way, employers are left with a judgment call to make, taking a view of their own workforces to navigate the least risky route. In assessing amenities, employers may already have facilities which they can re-assign as mixed/neutral, or they may be able to identify space that can be developed to create additional facilities. Alternatively, if there have been no issues raised by employees in relation to current practices (including if that current practice involves trans people using the toilets for their acquired gender), a pragmatic approach might be adopted and a decision made that changes are not needed, at least for the time being until updated EHRC guidance is provided (noting the possibility that there still may be a claims risk and the make-up of the workforce will change over time).

Discrimination

• Trans employees are protected from discrimination on the grounds of gender reassignment. In addition:
• A trans woman would be able to bring a direct sex discrimination claim insofar as they are able to show that they were treated less favourably because they are perceived to be a woman (and the same is of course true in the case of a trans man who is treated less favourably because they are perceived to be male).
• The Equality Act also caters for associative indirect discrimination. For example, if “women” as a group suffer a disadvantage as a result of an employer’s policy or practice, a trans woman who suffers the same disadvantage as women (despite not being classified as a ‘woman’ and therefore in the protected group) can bring a claim.
• Finally, harassment claims need only be ‘related to’ a particular protected characteristic (the complainant does not need to have that characteristic).

Pay gap reporting

• The decision doesn’t impact the rules in respect of gender pay gap reporting. The gender pay gap regulations don’t define the terms ‘men’ and ‘women’ and the statutory guidance states that each employee’s gender depends on how they choose to identify (albeit the Court noted how deviating from biological sex in data collection may ‘distort’ the data in the context of equality of the sexes – a view the EHRC has previously shared with the UK Government).

Diversity policies

• Employers should continue to ensure that all employees are treated with dignity and respect – aside from the risks set out in the “discrimination” section above, it is of course generally important to create an inclusive workplace in which all employees feel safe and included. Related to that, businesses will want to consider their approach to social media policies given the recent line of cases relating to protected beliefs.

What does this mean for service providers?

While outside the scope of this note, it should be noted that service providers are permitted to provide to the public single-sex services and/or different services to men and women provided such services meet certain conditions and it is a proportionate means of achieving a legitimate aim. This might include, for example, a women-only refuge. In such circumstances, the service provider is protected against sex and gender reassignment discrimination claims.

How should employers deal with competing protected beliefs and characteristics?

We have already seen a large amount of commentary on the decision and the debate around trans people’s rights and gender critical beliefs will continue to be at the forefront for the foreseeable future.

Employees are free to express protected beliefs and shouldn’t, for example, be disciplined as a result of expressing those beliefs, unless (broadly speaking) such an interference is proportionate in achieving a legitimate aim. For example, if an employee expresses a gender critical belief, but the way in which they do so is unreasonable and incites hatred towards trans people, action taken against that employee would likely be proportionate.

We anticipate that it will become a more challenging environment for employers as they are increasingly faced with scenarios where competing beliefs are prevalent and/or being questioned, particularly given the practical uncertainty following the Court’s decision. To make matters even more complex, the Court of Appeal’s judgment in Higgs v Farmor’s School which deals with the expression of protected beliefs is now the subject of an appeal to the Supreme Court.

With this in mind, employers should:

• Clearly set out expectations of standards of behaviour in the workplace and at events which are held in connection with work (e.g. social events, conferences, work events). This could be through policies, a code of conduct and/or setting company values. Employees should be reminded that they are to treat others with dignity and respect, regardless of their own personal views.
• Avoid a knee-jerk reaction to, for example, a controversial social media post or discussion – managers should take their time to assess the situation and take a balanced approach. Consideration should be given to both the parties’ rights and the matters of contention, whilst avoiding decisions based on personal beliefs. Employers should ensure that managers are trained in handling such matters and seek the guidance of HR.
• Review and update policies. Social media is a popular medium in which individuals express their opinions and often enter into debate. A social media policy should provide sufficient guidance on how employees should use their social media in the context of work. For example, asking that views are signposted as an individual’s own (not that of their employer) and a requirement to consider the audience in which they are delivering their views to (e.g. is this on a private Facebook account with no work colleagues connected, or in a WhatsApp group containing work colleagues?).

[1] For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16

[2] It’s important to explain the terminology which is used in this publication and the context regarding gender recognition certificates. We have used the same terminology as the Court adopted. When we refer to ‘biological’ woman, man or sex, we are referring to a person’s biological sex at birth. Someone who is a biological man at birth but who has the protected characteristic of gender reassignment, is referred to as a “trans woman”. Someone who is a biological woman at birth who has the protected characteristic of gender reassignment is referred to as a “trans man”. The characteristic of gender reassignment means someone who is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”)” (section 7(1) Equality Act 2010). A trans woman or trans man can apply for a GRC if they meet certain conditions. The impact of that GRC is to provide legal recognition of their acquired gender ‘for all purposes’, subject to different provisions made in other legislation. We describe trans women and trans men who have obtained a gender recognition certificate as “trans women with a GRC” and “trans men with a GRC”, respectively. The Scottish Government’s guidance (after revision) adopted a definition of “woman” which only included trans women with a GRC.

[3] An interim update on the practical implications of the UK Supreme Court judgment | EHRC

[4] Regulation 20(2)(c) of the Workplace (Health, Safety and Welfare) Regulations 1992.