Supreme Court ruling on the definition of ‘sex’ in the Equality Act 2010: implications for employers
The recent Supreme Court decision in For Women Scotland Limited vs The Scottish Ministers has provided clarification on the meaning of ‘sex’ within the context of the Equality Act 2010. Here, we’ll break down the background of the case, the court’s decision and what it could mean for your business going forward.
Understanding the background to the For Women Scotland Limited vs The Scottish Ministers case
At the centre of this case is a piece of Scottish legislation called the Gender Representation on Public Boards (Scotland) Act 2018. This law was designed to improve gender balance by increasing the number of women appointed to the boards of certain public authorities in Scotland.
To help interpret this law, the Scottish Government issued official guidance. They clarified that, for the purposes of this Act, the word “woman” should have the same meaning as in the Equality Act 2010, which would include individuals who hold a Gender Recognition Certificate (GRC) confirming their legal gender is female – meaning they should be counted as women under this Act.
However, this interpretation was challenged by a group called For Women Scotland Limited. They argued that under the Equality Act, “sex” specifically refers to biological sex – and that including individuals with a GRC in the definition of “woman” under the Scottish Act did not align with what the Equality Act intends.
The issue before the Court was whether the definition of “woman” in the Equality Act was based solely on biological sex, or whether it also includes those who are legally recognised as women through a GRC.
What is a Gender Recognition Certificate (GRC)?
A GRC, issued under the Gender Recognition Act 2004, gives legal recognition of an affirmed gender to individuals whose gender identity is different from the sex recorded on their birth certificate. It means updates can be made on specific legal documents like birth and death certificates, and means individuals can marry in their affirmed gender. However, holding a GRC isn’t necessary to change other documents like passports or driving licences.
What the Supreme Court decided about the definition of “sex” in the Equality Act
The key question in this case was whether the term “sex” in the Equality Act 2010 includes people who have a Gender Recognition Certificate (GRC) that confirms their affirmed gender.
The Supreme Court ruled that it does not, and the term “sex” refers specifically to biological sex – meaning the sex someone was assigned at birth.
In reaching this decision, the judges explained that the provisions of the Act need to be interpreted in a clear, consistent way to ensure protected groups can be easily identified, so it wouldn’t be appropriate to apply different definitions of ‘sex’ in different parts of the Act.
As some parts of the Act – such as those that deal with pregnancy protections – could only apply to biological women, “sex” had to be defined in terms of biological sex.
Importantly, the Court made it clear that this ruling does not reduce the legal protections that transgender people already have under the Equality Act. Those protections still stand firm. What this decision does is ensure that the term “sex” is applied in the same way throughout the Act, so that all protected groups are clearly defined.
What happens next: EHRC guidance and ongoing consultation
While the Supreme Court’s decision has clarified that the term “sex” in the Equality Act 2010 refers to biological sex, how this plays out in practice is still being worked out.
Soon after the ruling, the Equality and Human Rights Commission (EHRC) updated its guidance, focusing on the use of single-sex spaces – such as toilets and changing rooms. The EHRC advised that, where such facilities exist, they should be used based on a person’s biological sex.
This update has sparked widespread debate. Some critics argue that applying this guidance could conflict with the rights of transgender individuals, who are also protected under the Equality Act and the European Convention on Human Rights.
Originally, the EHRC had planned to run a two-week consultation on potential changes to their Code of Practice. However, after receiving feedback from various organisations and Parliament’s Women and Equalities Committee, the consultation period was extended to six weeks.
The consultation began last week and will close on 30 June 2025. Its aim is to gather feedback on whether the proposed updates clearly explain how the Supreme Court’s ruling should be applied in real-life settings.
Following the consultation, the EHRC will review the responses received and make any necessary amendments to their Code of Practice and guidance. It will then be submitted to the Minister for Women and Equalities for approval, before being put before Parliament.
What should employers do now?
At this stage, there’s no need to make immediate changes to your workplace policies or procedures. While the EHRC has issued interim guidance following the recent Supreme Court ruling, it’s best to wait until the public consultation concludes and the updated statutory Code of Practice is finalised and approved by Parliament.
We’re keeping a close eye on developments and will keep you informed. As soon as there’s clarity, we’ll provide our HR & Employment Law clients with updated policy wording and practical guidance to help you stay compliant.
In the meantime, if any issues come up – for example, around the use of single-sex facilities – these should be handled on a case-by-case basis. We strongly recommend seeking expert advice in such situations to ensure your approach aligns with the Equality Act principles.
It’s also important to recognise that opinions in this area can differ significantly, and workplace tensions may arise. In such cases, your priority should be to treat everyone with dignity and respect. Make sure your anti-bullying and anti-harassment policies are applied fairly and consistently, with equal consideration for protections related to gender reassignment and religious or philosophical beliefs.
If you’re ever unsure or find yourself dealing with a sensitive issue, please reach out to one of our employment law experts for tailored support and advice. If you’re already an HR & EL client, please call 0345 844 4848* to access the advice line. If you’d like to add HR & Employment Law to your package, please call 0345 844 1111 to chat about how we can support your business.
*Applicable for all clients who’ve purchased Citation’s HR & Employment Law and/or Health & Safety core service, including H&S and HR Workplace Expert. Please note that our H&S and HR Virtual Assistance clients have access to our advice line Mo
