Tag: case update

‘Woman’ and ‘female’ under the Equality Act 2010 (EqA) means someone who is a biological woman. ‘Man’ and ‘male’ mean someone who is a biological man. Whether or not a person holds a Gender Recognition Certificate (GRC) is of no relevance, for EqA purposes. A trans man (with or without a GRC) remains a ‘woman’ under EqA and a trans woman (with or without a GRC) remains a ‘man’.

This means that all of the protections and rules set out in EqA now apply based on the biological sex of the individual.

However, the Court emphasised that this interpretation does not affect the existing rights of transgender people under the EqA: they remain protected from discrimination under the characteristic of gender reassignment and may also be protected through claims based on perception or association with their acquired (trans) gender.

Facts:  The case arose from a challenge to the Gender Representation on Public Boards (Scotland) Act 2018 (2018 Act). The 2018 Act sets out measures to improve the representation of women on public sector boards and defines ‘woman’ to include transgender women.

For Women Scotland Ltd (FWS) a campaign group, argued that this definition went beyond the legislative powers of the Scottish Parliament, as it touched on the meaning of sex under the Equality Act 2010, which is a matter reserved to the UK Parliament. After some consideration of their arguments in the Scottish courts, FWS brought a judicial review, arguing that transgender women with a GRC should not be included in the 2018 Act’s definition of “woman”, because the Equality Act should be interpreted as referring only to biological women.

This issue was considered by the Supreme Court. 

Supreme Court decision 

The Supreme Court held that the terms ‘man’, ‘woman’ and ‘sex’ in the EqA refer to biological sex only, and should not be interpreted to include GRC (I.e. transgender) sex.

The Court said that:

• Allowing the sex recorded on a GRC to define terms like ‘man’, ‘woman’ and ‘sex under the EqA would lead to legal inconsistency and confusion. The terms must be interpreted based on biological sex throughout the EqA to maintain coherence, particularly in areas such as pregnancy, maternity, single-sex services, and sex-based protections.

• Clarity and consistency are crucial so that employers and service providers can understand and meet their legal duties.

• Similarly, other legal provisions require a biological interpretation of sex in order to function coherently, such as those relating to separate spaces and single sex services (including changing rooms, hostels and medical services), communal accommodation, and single sex higher education institutions. These provisions would also become unworkable with a GRC sex interpretation.

• Similar confusion and impracticability would arise in the operation of provisions relating to single sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces.

• Using GRC certificated sex could undermine protections for other groups, including those defined by sexual orientation, for example, by threatening the integrity of lesbian-only spaces. Additionally, giving greater rights to transgender people with GRC, in comparison to transgender people without them (by including the former in the legal definition of their acquired sex) had the potential to unfairly divide the transgender community and create practical issues for employers and service providers alike (who cannot lawfully ask if someone holds a GRC).

However, the Court also went on to warn that this judgment should not be taken as being a triumph of one or more groups in society over others, and reiterated that the EqA will continue to give transgender people protection from discrimination and harassment through the protected characteristic of gender reassignment. Discrimination on this basis (including direct, indirect, harassment, by association and/or by perception) remains unlawful and it is unnecessary to define sex under the EqA as including those with a GRC, to protect transgender people.

Equality and Human Rights Commission (EHRC) Update

On 25 April 2025, the EHRC published an interim update on the practical implications of the UK Supreme Court decision. This update (to be followed by more in-depth statutory and non-statutory guidance) highlighted in brief the main consequences of the  decision for employers and service providers, including in relation to single sex facilities and services. The update was revised on 24 June 2025 to provide further clarity on workplace facilities.

Although the guidance is brief, the key points to take away are that:

• Under the EqA, a ‘woman’ is a biological woman or girl, and a ‘man’ is a biological man or boy. If somebody identifies as transgender, they do not change sex for the purposes of the EqA, even if they have a GRC.
• In workplaces, employers must provide sufficient single-sex toilets, single-sex washing areas and changing rooms if needed. Where single-sex facilities are provided, all individuals should use the facilities aligned to their biological sex and not the sex that they identify with. This means that trans women (biological men) should not be allowed to use the women’s facilities and trans men (biological women) should not be allowed to use the men’s facilities, otherwise they will no longer be single-sex facilities.