On 16 April 2025, the Supreme Court handed down judgment in For Women Scotland Ltd v The Scottish Ministers, which made key findings in respect of the definition of sex in the Equality Act 2010. This is an important decision from the highest court in the UK. In this article we will try to assess the impact of the decision on (principally) women and transgender people and what this means for employees and employers.
Why was the case brought?
The case was brought in order to challenge legislation that was passed in 2018 by the Scottish Parliament. The legislation in question was the Gender Representation on Public Boards (Scotland) Act 2018. The (laudable) purpose of this legislation was to increase the representation of women on public boards. The definition of a woman in this legislation was intentionally broad and was trans inclusive and accordingly included trans women (someone who was biologically male at birth, but later transitioned to be female) who did (or did not) have a Gender Recognition Certificate. A collective group of women objected to this broad definition of women and brought a legal challenge that was then addressed by the Supreme Court last month. Their position was that the legislation should be limited and focussed only on those individuals who were biologically female at birth.
What was the decision of the Supreme Court?
The Court had to grapple with the definitions in the Equality Act 2010 (the Equality Act) and the Gender Recognition Act 2004. Specifically, they had to decide whether, in circumstances where an individual has obtained a Gender Recognition Certificate in accordance with the provisions of the Gender Recognition Act 2004, (for the purposes of the Equality Act) the individual’s sex was that of their acquired gender (thereby including trans individuals) or their biological sex at birth (specifically excluding trans individuals).
As widely reported, the Court came to the conclusion that (again, for the purposes of the Equality Act only) to be a “woman” requires the individual to be biologically born a woman and that “sex” is the gender of the individual at birth.
What has changed as a result of the judgment?
The Supreme Court held that where the Equality Act refers to ‘man’ and ‘woman’, this is referring to their biological sex at birth.
The Equality Act has not ‘changed’. The decision does not make any changes to the Act. However, what has changed is the interpretation of the words “woman” and “sex”. Previously, it was possible for a trans individual to (for example) present a claim under the Equality Act on the basis of being a woman in circumstances where their biological sex at birth was male (and visa-versa, of course). This is now no longer possible following this judgment and this is how the law has changed.
This means that for the purposes of the Equality Act and the protections afforded under the protected characteristic of ‘sex’, those who are trans women (someone who was born male but transitions to become female by fulfilling all the legal requirements of the Gender Recognition Act 2004) with a Gender Recognition Certificate identifying them legally as a woman, are not to be recognised as a ‘woman’ for the purposes of the Equality Act. Rather, they are (under the Equality Act) considered to be a male. The decision further clarified that any trans person who did not have a GRC would also be identified for the purposes of the Equality Act as being of their sex at birth.
The judgment also makes it clear that the right to use spaces or services that are designated as being for ‘women only’ does not extend to trans women who were born male (regardless of their GRC status).
Equality and Human Rights Commission (“EHRC”) Interim Guidance:
On 15 April 2025, the Equality and Human Rights Commission published a new “Interim Guidance” document in response to the decision by the Supreme Court.
This is guidance is only interim. The EHRC has also announced that they intend to undertake a two-week consultation about the implications of the Supreme Court’s judgment which will commence in the middle of May 2025. It is expected that the full updated guidance will be available towards the end of June 2025 or July 2025.
The guidance that has been published by the EHRC is very clear, and arguably clearer and goes further than the Supreme Court decision. It states the following:
- A trans woman (who is a biological man) should not be permitted to use the women’s only toilets, as doing so would mean that they are no longer single sex facilities.
- A trans man (who is a biological woman) should not be permitted to use the men’s only toilets.
- 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 woman) not to be permitted to use the women’s facilities
- Where facilities are available for men and women, trans people should not be in a position where there is no toilet available to them.
- Where possible, mixed-sex toilets should be provided in addition to single-sex toilets.
- Where toilets are in lockable rooms (not cubicles), they can be gender-neutral toilets.
The guidance from the EHRC does not have the same legal standing at the Supreme Court judgement and is not legislation. Further, given that the interim guidance is going to be subject to further consultation itself, this does mean that despite the fact that the guidance is very clearcut, there is a very real possibility that it may change in the coming weeks or months.
The guidance itself has been quite divisive, being welcomed in some quarters and receiving heavy criticism from others.
What impact does this have on the rights of trans people in the workplace?
This judgment means that (for example) a trans woman (with or without a GRC) is not able to rely on rights afforded to ‘women’ under the protected characteristic of sex within the Equality Act. The judgment does not go further than this, although it recognises that there will be, unsurprisingly, many consequences of the conclusions that it came to.
The judgment does not affect the existing protected characteristic of ‘gender reassignment’. A trans employee (or worker) therefore remains protected from discrimination (including harassment) under this limb of the Equality Act.
In addition to the protection afforded to trans employees and workers under the protected characteristic of ‘gender reassignment’, the Equality Act also allows for claims of discrimination (including harassment) to be brought by trans employees and workers on the grounds of the protected characteristic of sex, in the event that a trans woman (for example) who (notwithstanding this ruling that would define that individual as male) presents as a woman and is perceived by others to be a woman and is subject to discrimination because of the perception that she is a woman, can potentially pursue claims that rely on the concept of ‘‘perceived’ discrimination.
What does this mean in practice in the employment context?
Use of toilets
One of the key practical consequences of this judgment and (particularly) the EHRC Interim Guidance will be on the use of toilets, and specifically who can use which single sex facility.
The EHRC Interim Guidance states that women only spaces that are protected for women can (and indeed, should) exclude a trans employee or worker. This means that a trans woman will no longer be able to use female toilets, and a trans man will no longer be able to use male toilets. Rather, they are required to use the toilet relevant to their sex of birth or gender-neutral toilets.
One practical concern that has arisen as a consequence of the EHRC guidance is the following statement:
“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 woman) not to be permitted to use the women’s facilities”
This could potentially result in a trans employee not having any toilet facilities to use where the employer does not provide gender neutral facilities. This is partly explained by the SC judgment at paragraph 221, in which it states:
“Women living in the male gender could also be excluded [from a women’s service] under paragraph 28 without this amounting to gender reassignment discrimination. This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided.”
What is evident from this is that further clarity is urgently needed for employers.
The issue of using toilets has long been a concern for many trans people. The Stonewall LGBT in Britain – Trans Report (2018) suggests that almost half of trans people did not feel comfortable using public toilets for fear of discrimination or harassment. Studies have also suggested that there is a real risk of harm to a trans person’s health that relate to the use of bathrooms. Many trans people may simply avoid using bathrooms for fear of confrontation, discrimination or abuse, and this can have knock-on effects such as kidney or urinary tract infections if people are not comfortable using the toilets that are provided.
We therefore anticipate the issue of the use of and access to single sex toilets to remain a difficult issue for many employers to navigate with their workforce. Employers will now need to consider their policies and ensure that everyone has a space they are comfortable using.
What are the implications if employers continue to allow trans women to use the women’s only toilets?
In our view, in light of both the judgment and the interim guidance from the EHRC, employers should be taking steps to ensure that any trans members of staff are either using the toilet that corresponds to their biological sex at birth, or that they are using a suitable gender-neutral toilet. If employers do not do so, they could be in breach of their legal obligations and at risk of a harassment claim from other members of staff who are using the single-sex toilets.
This is clearly though a very difficult issue to address and the fact that the employer is required to comply with the judgment in this way, it is important that employers continue to be an ally to their trans employees and manage and conduct conversations with sensitivity and care and that support should be provided.
It is anticipated that the case law and guidance in this area will develop, which will (hopefully) provide greater clarity and certainty about the balancing of rights between the enforcement of hard fought rights for women (women, as defined in the Equality Act) and trans employees. We will all welcome that clarification in the future as there are many practical implications of this judgment and EHRC guidance that are left without clear answers, but in the meantime all employers will have to navigate the continued uncertainty with significant levels of care, caution and understanding for all groups.
Whilst the gender-neutral bathroom may appear to be an obvious solution, there is likely to remain a clear distinction between gender neutral bathrooms and the use of disabled toilets as a gender-neutral solution. The case of Taylor v Jaguar Land Rover concerned discrimination against a trans woman in which one of her complaints was in relation to being told she could only use the disabled toilets (which the judgment established was “at the very least, potentially offensive”). However, it would not be surprising to see this offered as a solution by employers in cases where they simply do not have any other gender-neutral facilities available. We are yet to see how this might play out in practice in the tribunal considering the judgment from the Supreme Court and the (current) guidance from the EHRC[VC5] .
Another point to consider is whether this judgment might mark a shift in approach so that more gender-neutral toilets are provided as a standard, rather than the traditionally separated men’s and women’s toilets that are currently commonly used. This would appear to be the obvious solution, albeit that it will naturally come at a financial cost to employers at a time when they are already experiencing increases in employment costs, most notably the recent increases in National Insurance Contributions and the National Minimum Wage.
Pregnancy and maternity
The protections under the Equality Act for pregnancy and maternity apply only to women. This means that a trans man (who was biologically female at birth), would still have all the same pregnancy and maternity rights as other women.
Occupational requirements
The law has not changed in this area. An employer remains permitted to require employees doing particular roles to be of a particular sex on the condition that there is a clear occupational requirement for doing so. This means that trans women, for example, can be excluded from roles that are only available to ‘women’. Employers will still need to act cautiously when considering if there is a genuine occupational requirement for the role to be carried out by only one particular sex.
Gender pay gap reporting
The rules on gender pay gap reporting relate to the Equality Act, and so it follows that reporting would therefore need to be on the basis of employees’ biological sex at birth, rather than their assigned sex as a trans person. There is guidance in relation to considerations around how a person defines their gender and whether HR records can provide further information where it has already been provided.
Policies, Procedures and Training
It may be helpful for employers to review their current policies and procedures on matters such as bullying and harassment, and equality and diversity, to reflect the newly clarified legal definitions of sex, whilst also ensuring that protections for transgender people are maintained within these policies.
As part of this process, it will also be important to ensure that HR teams and managers are adequately trained to understand the distinctions and to be able to apply the correct processes in a legally compliant and sensitive manner.
We consider this to be particularly important for employers to ensure that they continue to support and promote an inclusive culture to all employees and workers. There is a real risk that this decision in itself can cause additional conflict, given the different views and opinions held by people in respect of this issue. Employers need to ensure that all parties views and opinions are respected and that no individuals are subject to discrimination and harassment as a consequence.
This article was co-written by Charlotte Cole and Matt Huggett, solicitor and partner in our Employment Law team.