28.04.2025 (updated 15.05.2025)

In For Women Scotland Ltd v The Scottish Ministers, the Supreme Court addressed the interpretation of the Equality Act 2010 (EqA 2010) in relation to gender reassignment and sex discrimination – specifically ‘is a person with a gender recognition certificate (GRC) which recognises that their gender is female, a “woman” for the purposes of the EqA 2010?’

Background

For Women Scotland (FWS) is a feminist voluntary organisation which campaigns to strengthen women’s rights and children’s rights in Scotland. FWS sought to challenge statutory guidance concerning gender representation on public boards in Scotland and this process led to the courts carefully analysing the EqA 2010 definition of “woman”. The case went before the Supreme Court in November 2024 and the Court recently issued its detailed judgment.

Key issue and the Supreme Court’s decision

The EqA 2010 operates to protect from unlawful discrimination those with “protected characteristics” - including the separate ones of “sex” (namely being a “man” or a “woman”) and “gender reassignment” (gender reassignment broadly covering all trans people and not requiring a GRC for the relevant protections). 

The central issue in this case was whether the references in the EqA 2010 to a person’s  “sex”, and to “man”, “woman”, “male” and “female” should be interpreted in light of the Gender Recognition Act 2004 (GRA), which allows a person to change their sex by obtaining a GRC. The GRA states that, following the issuing of a GRC, “the person’s gender becomes for all purposes the acquired gender”, but this can be disapplied by other legislation such as the EqA 2010. The Court was therefore required to determine whether the EqA 2010 should treat a trans woman with a GRC as a woman for all purposes within the scope of its provisions, or whether when the EqA 2010 says “woman” and “sex”, it is referring to a biological woman and biological sex.    

Having examined the legislation in detail, the Court unanimously concluded that the terms “sex”, “man”, “woman”, “male” and “female” refer to biological sex (the sex of a person at birth) not the sex attained by the acquisition of a GRC. A GRC does not, therefore, change a person’s sex for the purposes of the EqA 2010.  The Court found that any other interpretation would render the EqA 2010 incoherent and unworkable, particularly as it references “sex” throughout all its different sections relating to sex discrimination, pregnancy and maternity, separate and single-sex spaces and services, associations and charities and the operation of the public sector equality duty. 

In delivering its lengthy judgment, the Court was keen to stress that while the concept of sex is binary - a person is either a woman or a man - its interpretation of the EqA 2010 does not have the effect of removing important protections which are available to trans people. On the contrary, the EqA 2010 expressly prohibits discrimination and harassment against trans people on the grounds of gender reassignment. 

EHRC interim guidance 

The EHRC has committed to providing – by the end of June – a revised Code of practice to support service providers, public bodies and associations to deal with the implications of the Supreme Court judgment and Make UK will be pressing Government/the EHRC to ensure that it also provides guidance for employers by updating the Employment Code of Practice.  

In the meantime, the EHRC over the weekend has issued ‘An interim update on the practical implications of the UK Supreme Court judgment’ (“interim update”), to highlight the main consequences of the judgment while the work on the revised Code(s) is ongoing. For employers, this concentrates on toilets, and where relevant washing and changing facilities (referred to together in this article as “facilities”) in the workplace.

The interim update states that ‘In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed’. (This seems to refer to provisions in the 1992 Workplace (Health, Safety and Welfare) Regulations which state that employers must provide separate toilet facilities for men and women except where each facility is in a separate room, the door of which is capable of being secured from inside.) It goes on to say: 

  • 'trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
  • in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological women) not to be permitted to use the women’s facilities
  • however, where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
  • where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
  • where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men'. 

What does this mean for employers going forwards?

It’s worth remembering that the case of For Women Scotland focused on whether someone with a GRC becomes their acquired or certified sex for all purposes under the EqA 2010 and was not specifically about employment law. Clearly, however, this judgment does impact on issues relating to discrimination in the workplace. Employment lawyers – including here at Make UK – are currently thinking through all the implications in respect of matters such as pregnancy and maternity, equal pay, gender pay and positive action, and as set out above we will be pressing the Government/the EHRC for clear guidance and will update you in due course. 

In the meantime, however, we recognise – as the EHRC does in its interim update – that employers are particularly struggling with what they should be doing in the light of this judgment regarding facilities in the workplace. Many employers have been grappling with this issue for some time. The Supreme Court judgment and the interim update have clarified certain matters but unfortunately others remain unclear. Some key points employers should have in mind at this stage include the following:

  • Employers must provide single-sex facilities in the workplace unless they provide facilities in rooms (not cubicles) that can be secured from the inside. Such rooms can be for mixed sex use. The Health and Safety legislation considers both these types of facilities to be “suitable”. HSE guidance sets out the minimum number of “suitable” facilities required, which vary with employer size.
  • Limiting the use of single-sex facilities based on biological sex (e.g. excluding a trans woman from using the women’s toilets) would not amount to sex discrimination against a trans employee.
  • The EHRC interim update does not address how to balance the provision of single-sex facilities against the rights of trans people, for example regarding gender reassignment discrimination,  in particular where there are no appropriate or equivalent facilities available for them.  
  • Trans employees should not be put in a position where there are no facilities for them to use, and concerns have been raised – both legal and practical – around trans employees being required to use facilities according to their biological sex. 

In the light of the above, it appears that employers who currently have sufficient separate men’s and women’s facilities will also need to have facilities that both sexes can use, in order to accommodate trans employees. This could be achieved by adding mixed-sex cubicles (provided you still meet the requirement to have sufficient other “suitable” facilities, see above, as mixed sex cubicles are not “suitable” under the legislation), or by adding floor to ceiling lockable rooms that can be for mixed sex use. (Remember that if there are sufficient of these lockable rooms, this would anyway fulfil the conditions of the health and safety regulations regarding access to ”suitable” facilities.) For employers that currently do not have any mixed-sex facilities, adding mixed sex facilities  may not be achievable immediately or even in the short-term.  

Employers currently of course take differing approaches regarding their facilities and what they do now in the light of the judgment will depend on their particular circumstances (including whether they have groups of employees with opposing concerns).  We are currently advising a number of employers on a bespoke basis, and we invite you to get in touch with us if you require assistance (see also below – How we can help). Generally, however, it is worth noting the following: 

  • Consider your next steps carefully - Given the current EHRC guidance is in interim form and could change, some employers may be reluctant to change their arrangements before final guidance is published. Such an approach risks claims from employees if the provision of facilities is not currently compliant with the For Women Scotland case. However, given the sensitivity of the issue, there is an argument for proceeding slowly and waiting for the final guidance (see also our recommended steps below). As we will be telling Government, employers should not have to change their current policy and approach (particularly where it has evolved from a careful balancing of the rights of different groups) without first receiving authoritative guidance.
  • Communications - The Court noted in its judgment, and you will have no doubt seen yourselves from the resultant publicity, that significant strength of feeling has been generated by the disagreements between campaigners seeking to represent the interests of each of the groups involved in the case. You should think about what reassurances you can give to employees who may be worried about the implications, and you may want to remind staff generally of your equality and anti-harassment policies.
  • Consultation – Do you have diversity groups or other appropriate staff forums that you could talk to about the implications of this case? Would you consider a staff survey on your diversity policies and arrangements? In any event, consultation on any policy changes arising from this judgment will be important from an employee relations point of view and also help to minimise legal risk.
  • Training - It is worth considering whether your organisation would benefit from training in this area. As we noted following the recent Court of Appeal’s judgment in Higgs v Farmor’s School, taking active steps to foster a workplace culture which emphasises the importance of dignity and inclusion can go a long way towards reducing internal conflict within the workplace, as well as placing an employer on the best footing for resolving problems that do arise. 

How we can help

If this is an area in which your organisation would benefit from support, Make UK can, as set out above, provide further advice on how to adapt to the Supreme Court ruling and EHRC interim update.  In addition, and more generally in the area of EDI, we provide a suite of products including general awareness training for employees and specific training for your HR and leadership teams. 

If you are a Make UK subscriber, you can speak to your regular adviser with any queries you may have and/or to request further consultancy support. Make UK subscribers can also access guidance on a wide range of employment law topics including template policies and drafting guidance in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support. Please click here for information on how we can help your business.