Home / Supreme Court defines “woman” in the Equality Act in landmark ruling
29th May 2025
Jake McManus, Solicitor
In For Women Scotland Ltd v Scottish Ministers, the Supreme Court unanimously held that the words “sex”, “man” and “woman” in the Equality Act 2010 refer to biological sex. These definitions therefore exclude transgender people who hold a Gender Recognition Certificate.
The Equality Act 2010 (EA 2010) prohibits discrimination, harassment, and victimisation based on a person’s protected characteristics, which include sex and gender reassignment. The EA 2010 was an amalgamation of previous anti-discrimination laws, including the Sex Discrimination Act 1975 (SD 1975) and the Sex Discrimination (Gender Reassignment) Regulations 1999 (GR 1999), consolidating them into one single piece of legislation.
The Appellant in this Supreme Court case, For Women Scotland, challenged the lawfulness of statutory guidance issued by the Scottish government, which advised that a person who has a Gender Recognition Certificate (GRC) recognising their gender as female would bring them within the EA 2010 definition of a “woman”. For Women Scotland challenged the lawfulness of this statutory guidance. Their position was that the definition of “woman” was based on biological sex, excluding trans women (a biological male with a GRC recognising them as female). The Scottish government argued that the definition in the EA 2010 refers to “certified sex”, which would include trans women with a GRC. The issue the Supreme Court had to decide upon therefore was whether a person with a GRC which recognises that their gender is female is a “woman” for the purposes of the EA 2010.
The question the Supreme Court was asked seems on the face of it like a simple one: what do the words “sex”, “man” and “woman” mean in the EA 2010? However, in reality that could not be further from the truth, as reflected by the Supreme Court’s judgment which comes in at a hefty 90 pages. In the judgment, great care is taken to remind those reading it that the principal question which this case addresses is the meaning of the words sex, man and woman in the EA 2010 for the purposes of protecting individuals from discrimination. It was not the Court’s role to define, or comment on, the meaning of gender and/or sex other than when being used specifically in relation to the EA 2010.
The Supreme Court unanimously held that the terms “sex”, “man” and “woman” in the EA 2010 refer to biological sex and not certified sex, and by doing so effectively ruled that a Gender Recognition Certificate does not change a person’s legal sex for the purposes of the EA 2010. The rationale behind the Court’s interpretation can broadly be split into two. Firstly, the Supreme Court determined what Parliament’s intention was when the EA 2010 was enacted. In doing so the Court found that the SD 1975 used the words “man” and “female” to distinguish between groups on the basis of biological sex and the GR 1999 introduced protection from discrimination based on gender reassignment, without amending the meaning of “man” and “woman” in the SD 1975. Given that the EA 2010 replaced these two Acts without amending the meaning of these terms, it could only mean that the definitions of “man” and “woman” referred to biological sex and trans people had the protected characteristic of gender reassignment.
Secondly, the Supreme Court analysed various provisions of the EA 2010 to establish whether they indicated that a biological meaning of sex was intended, and/or whether a certified sex definition would render the provisions “incoherent or absurd”. In essence, the Supreme Court wanted to determine whether the EA 2010 could be capable of being clearly and consistently interpreted and properly applied in practice if the words “sex”, “man” and “woman” referred to certified sex, as an interpretation of the EA 2010 that produces “unworkable, impractical, anomalous or illogical results” is unlikely to have been intended by Parliament when they drafted the legislation.
It was found that interpreting “sex” as certified sex would cut across definitions of “man” and “woman” in an “incoherent way” in various provisions of the EA 2010. For example, the Court considered that the provisions relating to pregnancy and maternity discrimination could only be interpreted as referring to biological sex given that only biological women can become pregnant and can breastfeed. Therefore references to “woman” would not make sense if it applied to trans women with a GRC. Equally, if “sex” was interpreted as certified sex, trans men with a GRC – who can become pregnant and give birth – would be excluded from protection when pregnant. Other examples noted by the Court as to where the adoption of a certified sex definition would result in incoherence in the practical operation of the EA 2010 include the provision of single-sex medical services, for example where a trans man with a GRC would be denied access to cervical cancer screening services. A certified sex interpretation was also viewed as creating “an odd inequality of status” between those sharing the protected characteristic of gender reassignment who do or do not have a GRC, with no obvious means of distinguishing between the two groups (noting that it is unlawful to ask to see a GRC). This was accepted as creating difficulties for service providers who would be unable to consistently perform their obligations imposed by the EA 2010.
The Supreme Court concluded that the terms “sex”, “man” and “woman” refer to biological sex because any other interpretation would make the EA 2010 unworkable in practice. As such, a person with a GRC recognising them as female does not come within the definition of “woman” under the EA 2010.
The Supreme Court reiterated that its decision does not remove protection from trans people, with or without a GRC, because they are still protected from discrimination and harassment on the grounds of both gender reassignment and sex. A trans employee who lives as a woman and presents as a woman could still claim sex discrimination because she is perceived to be a woman, or claim harassment relating to sex if a colleague makes sexualised comments relating to what they are wearing or degrading comments about how they look. The Court maintained that a certified sex reading is not required to give these protections.
It is abundantly clear from the judgment that the Supreme Court is aware of the strength of feeling which has been generated by the disagreements between the parties involved in this case and the wider public debate. The judges were also no doubt aware of the inevitable and intense debate that would be ignited in the public domain following their judgment. As such, the Supreme Court have gone to great lengths to emphasise that, irrespective of this judgment, transgender people are protected from discrimination, harassment and victimisation by the EA 2010, not least because this case does not affect trans people who do not hold a GRC, which the court noted is the large majority of trans people.
This case has attracted a significant level of media attention. However, for many businesses it will have minimal, if any, impact on day-to-day operations. The legal implications of this case will primarily affect employers for whom there is a general occupational requirement for an employee to be of a particular sex or where a business takes positive action measures with the intention of increasing representation of a particular sex. Nevertheless, all employers should review whether their policies are in line with the Court’s judgment more generally to ensure staff are not subjected to less favourable treatment. For example, policies relating to family leave (such as maternity) and menopause may need to be updated to ensure they capture all affected employees.
Despite the Court’s reassurances that the judgment should not be viewed as a victory for one group over another, employers should be alive to potential tensions within the workforce and seek to allay concerns of employees, particularly those employees who do not identify with their biological sex. Employers should ensure that they have robust procedures in place to adequately manage disputes between employees, such as an up-to-date disciplinary procedure confirming expected standards of behaviour and an anti-harassment policy which clearly sets out the company’s procedure for responding to allegations of harassment. More generally, employers should train managers and those in leadership so that they understand their obligations under the EA 2010 and the various protections it provides to employees, taking steps to protect the workforce from discrimination and harassment and ensuring all members of staff are treated fairly.
Finally, it should be remembered that employers cannot discriminate against employees because they hold certain views or beliefs but this does not give employees carte blanche to manifest or express those beliefs in a way that harasses or discriminates against others. The issues involved in this Supreme Court case can be an emotive area for some employees. What is offensive is often subjective and intention is irrelevant. Employers are cautioned to focus on the behaviour of the employee rather than their protected characteristic and whether their beliefs are worthy of protection.
Also note that since this judgement was delivered, EHRC has launched a consultation on updates to its code of practice. The 12-week consultation started on 20th May and runs until 30th June 2025.
If you would like any help putting in place relevant policies or assistance with training your workforce, or if you would like to discuss what this Supreme Court judgment may mean for your business, please get in touch with a member of the team on 0161 832 3434.