We understand that navigating sensitive changes in the law can be challenging, particularly when those changes impact identity, equality and individual rights in the workplace.
On 16 April 2025, the UK Supreme Court handed down a judgment in For Women Scotland v The Scottish Ministers, clarifying how the terms “man”, “woman” and “sex” are to be interpreted under the Equality Act 2010, particularly in relation to the Gender Recognition Act 2004.
This ruling has significant implications for employers, service providers and anyone involved in the interpretation or application of sex-based protections under UK equality law.
What the Ruling Means
The Supreme Court ruled unanimously that the legal definition of a woman under the Equality Act 2010 is based on biological sex. This means that, under the Act, a person’s sex is the one they were assigned at birth, not the gender they identify or live as, even if they have a Gender Recognition Certificate (GRC).
The case arose in response to a proposed amendment to the Gender Representation on Public Boards (Scotland) Act 2018, which sought to include trans women, people born male who identify as female, within the definition of ‘woman’. Campaign group For Women Scotland (FWS) objected and launched a judicial review, arguing that the Scottish Government’s definition of a woman should exclude trans women, whether or not they held a GRC.
While the Scottish courts initially upheld FWS’s position, statutory guidance was later revised by MSPs to align with the Equality Act 2010, which includes trans women with a Gender Recognition Certificate (GRC). FWS launched a second judicial review, which was dismissed, and the matter was escalated to the Supreme Court.
The Supreme Court found that including trans women in the legal definition of “woman” would conflict with provisions in the Equality Act. The judges said that doing so would have made the Equality Act incoherent, as specific issues, such as pregnancy or maternity, can only be interpreted as referring to biological sex.
In light of the judgment:
- A woman is a biological woman or girl (a person born female), and
- A man is a biological man or boy (a person born male).
If an individual identifies as trans, they do not change sex for the Equality Act, even if they have a GRC. Therefore, to interpret the Equality Act:
- A trans woman is a biological man, and
- A trans man is a biological woman.
What Does This Mean for Employers?
Following the judgment, the Equality and Human Rights Commission (EHRC) issued an interim update on 25 April 2025, setting out guidance for organisations and employers.
According to this update:
- Employers must provide adequate single-sex toilets, changing facilities and washing facilities where needed. These can only be considered non-single-sex if each unit is an individual, lockable space.
- Trans men (biological women) should not be permitted to use men’s facilities, and trans women (biological men) should not be allowed to use women’s facilities.
- In some cases, trans men and trans women may not be permitted to use facilities that align with their gender identity.
- However, it remains a requirement to ensure appropriate facilities are available for trans employees. Where possible, employers are encouraged to provide gender-neutral or mixed-sex individual facilities in addition to single-sex spaces.
Practical Implications
This ruling provides some clarity for employers. For example, where a role explicitly requires a female employee, such as a counsellor supporting victims of domestic abuse, an employer would not be acting unlawfully by declining a trans woman (biological male) for that position.
If colleagues were previously unaware of the individual’s transgender status, the employer could be placed in a difficult position: either allow the existing arrangement to continue, risking a potential sex discrimination claim or require the individual to use alternative facilities, which could inadvertently reveal their trans status to colleagues and risk a claim of discrimination on the grounds of gender reassignment.
Further guidance on how to navigate such situations would be welcomed by many employers seeking clarity.
It is important to note that trans people continue to be protected under the Equality Act 2010 and must not be treated less favourably because of the protected characteristic of gender reassignment. This protection applies to both direct and indirect discrimination.
- A clear example of direct discrimination would be an employer changing a trans employee’s role to remove public-facing responsibilities simply due to concerns about how clients might respond.
- An example of indirect discrimination could be a workplace that enforces significantly different uniforms for male and female employees without a legitimate reason. This may disadvantage a transitioning employee who wishes to manage their transition discreetly, as they would be forced to make a visible and potentially uncomfortable change at a specific point in time.
Lord Hodge, giving the lead judgment, remarked:
“We counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another. It is not.”
The ruling concerns interpreting the law, not making a value judgment about identity. Employers should continue to treat all individuals with dignity, fairness and respect while complying with their legal duties.
Need Advice?
If you’re unsure how this affects your organisation or whether your current workplace policies remain compliant, our team can help. We offer practical, sensitive and legally informed guidance to support your next steps. Contact our team at tcms@thomas-carroll.co.uk or 02920 853731.
