The Supreme Court has ruled that ‘man’, ‘woman’, and ‘sex’ under the Equality Act 2010 (EqA 2010) refer to biological sex, not acquired gender. The legal meaning of sex is now firmly anchored to biology, not gender recognition certificates. The ruling will reshape how businesses approach equality, recruitment, and single-sex services.
Background
The case arose from a challenge to the Scottish Government’s statutory guidance on the Gender Representation on Public Boards (Scotland) Act 2018. For Women Scotland (FWS) argued that redefining ‘woman’ to include transgender (trans) women with a Gender Recognition Certificate (GRC) unlawfully altered the EqA 2010’s framework. Lower courts upheld the guidance, but the Supreme Court overturned those rulings. It concluded that Parliament intended ‘woman’ and ‘man’ in the EqA 2010 to refer to biological sex, not legal sex acquired through a GRC.
Key findings
The Court stressed the need for clarity, consistency, and predictability in equality law. It found that:
- The protected characteristic of ‘sex’ is binary and based on biological sex.
- Including trans women with a GRC within the definition of ‘woman’ would make the EqA’s operation incoherent and unworkable.
- Trans people remain fully protected under the separate protected characteristic of ‘gender reassignment’.
Notably, the Court confirmed that obtaining a GRC does not change a person’s biological sex for the purposes of the EqA 2010.
Implications for employers
This judgment provides much-needed clarity for employers, particularly in single-sex services and occupational requirements.
Recruitment and occupational requirements
Employers may lawfully apply occupational requirements based on biological sex where justified, such as appointing only biological women to roles in women’s refuges or intimate healthcare settings. GRC holders cannot override these lawful occupational requirements.
Positive action and diversity initiatives
Positive action measures aimed at improving opportunities for women, such as women-only leadership programmes or shortlists, can now be targeted strictly at biological women. Employers should review any existing positive action initiatives to ensure compliance with the biological sex definition.
Workplace facilities
Employers providing separate changing rooms, toilets, or other single-sex facilities must understand that the EqA 2010 allows access to these spaces based on biological sex. However, any policy changes must still comply with broader duties to protect the dignity and privacy of all employees, including trans staff.
Anti-discrimination protections remain robust
Trans individuals continue to enjoy strong protections against discrimination and harassment. The Court emphasised that trans people are protected not only under the characteristic of gender reassignment but may also, depending on context, claim protection based on perceived sex or association.
Review policies and train staff
Employers should carefully review internal policies, such as those on inclusion, equality, recruitment, family leave, and harassment, to ensure they align with the clarified legal position. Staff training should also be refreshed to help HR teams and line managers understand their responsibilities.
Communicate
Leaders should communicate their commitment to diversity, equity and inclusion, and consider the potential impact of the decision on trans staff.
Challenges for HR
Although the ruling brings legal certainty, HR teams must balance their legal obligations with maintaining an inclusive workplace culture. Careful communication and policy framing will be essential to avoid unnecessary distress to trans employees while complying with the law.
Employers should avoid blanket bans or exclusionary policies. Any decision affecting a trans employee must still satisfy the proportionality test under the EqA 2010 and be handled sensitively to minimise potential grievances or reputational risks.
Gender critical beliefs
Your employees may discuss this judgment at the workplace and on social media. Remember that employees have the right to hold and express gender-critical beliefs, if they do so in a way that is not discriminatory or harassing towards others.
You must not discipline, dismiss, or disadvantage employees simply for holding or appropriately expressing gender-critical views, even where colleagues find those views offensive. However, expression must still comply with your workplace policies on respectful communication and anti-harassment.
On social media, the position is similar: while employees are entitled to express protected beliefs on their personal accounts, businesses may act only if the manner of expression crosses into misconduct, for example, if it is grossly offensive, harassing, or clearly damages the organisation’s reputation.
Broader impact
The ruling is already prompting wider legal and policy changes. The EHRC has announced plans to revise its guidance and codes of practice to reflect the Supreme Court’s interpretation. Updated guidance on managing separate and single-sex services and associations is expected later this year. In the meantime, the EHRC has issued a short interim update, highlighting the main consequences of the judgment.
For now, HR professionals should be aware that claims of sex discrimination, pregnancy and maternity rights, and occupational requirements must be assessed strictly by reference to biological sex. Meanwhile, protections for trans employees under gender reassignment provisions remain undiminished.
Implications for trans people
Gender reassignment protection
The decision means that trans women, whether or not they have a GRC, do not come under the definition of women for the purposes of the EqA 2010. They continue to be protected under the protected characteristic of gender reassignment. The protection begins when an individual is proposing to undergo gender reassignment, continues while the individual is undergoing the process and after they have changed gender. In addition, there are provisions to ensure that individuals are not subjected to a detriment for taking time off for the transition process.
Privacy
Trans people continue to be protected from discrimination or harassment because of their perceived sex rather than because they are trans. They also continue to have privacy rights over their previous gender, which is classed as special category data under the UK General Data Protection Regulation and the Data Protection Act 2018. They continue to have the right to respect for their private and family life under Article 8 of the European Convention on Human Rights, which protects the right to personal, sexual and gender autonomy.
Gender recognition certificates
It is important to note that the case only affects the legal position of trans people who hold a GRC. It does not affect the legal position of those who do not have a GRC, which the Supreme Court noted to be ‘the large majority of trans people’. In the future, the legal benefits of obtaining a GRC may be questioned. The court stressed that GRCs remained important in other areas of law, such as marriage. However, many trans people are likely to view them as less significant.
Proceed with caution
The Supreme Court’s decision is not about picking sides in a sensitive public debate. Instead, it seeks to ensure that equality law is clear, predictable, and workable. For HR professionals, it means carefully navigating the updated legal framework while maintaining a workplace where all individuals are treated with dignity and respect.
Employers who thoughtfully review and update their policies and provide staff training to embed understanding, will be best placed to meet their legal obligations while supporting a diverse and inclusive workforce.
Any support based on biological sex, such as anti-discrimination, anti-harassment and positive action, can be mirrored for trans people.
Source: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)
Need advice or support?
Navigating the legal landscape around gender-critical beliefs, workplace expression, and the Equality Act 2010 can be complex and sensitive. If your business would benefit from tailored advice, support with policy reviews, manager training, or assistance managing specific workplace issues, we would be happy to help.
Please feel free to contact us for a confidential discussion about how we can protect your organisation while upholding employees’ legal rights.
