On Wednesday 16 April 2025, the Supreme Court handed down a landmark decision in the case of For Women Scotland Ltd v Scottish Ministers.
Whilst this judgment pertained to the application of “woman” in the little-known Gender Representation on Public Boards (Scotland) Act 2018, it is already having a much wider impact, with public debate on the decision still ongoing. The decision sets a precedent that will most certainly be referenced in future disputes.
This judgment concerned the intersection of gender recognition and sex-based rights in the UK, and served to confirm that references to a “woman” would mean someone who was biologically female at birth, and not someone who is recognised as female by way of a gender recognition certificate.
Key points of the decision
This decision clarifies the position in respect of sex-based rights and protections in relation to the Equality Act 2010, being that protection from discrimination on the grounds of sex relates to biological sex only. The rationale behind the judgment is that to conflate the two protected characteristics of sex and gender reassignment would produce absurdities when interpreting the Equality Act in this way.
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The ruling does not invalidate or impinge upon the Gender Recognition Act 2004, which allows individuals to change their gender legally. However, it delineates that such recognition does not alter the interpretation of “sex” under the Equality Act.
However, notwithstanding the decision, the Supreme Court was keen to confirm that this judgment does not erode or remove the important protections available under the Equality Act 2010 to transgender people, who are protected from discrimination on the basis of gender reassignment.
Implications for employers
The Supreme Court’s decision will give rise to many important practical implications for employers, who will need to ensure that a balance is struck between complying with the law and avoiding discrimination against transgender employees.
Firstly, employers may need to review carefully, and potentially revise, their equality and diversity policies to ensure they align with the Supreme Court’s interpretation of “sex” and “woman” (and, by extension, “man”, being a person who is biologically male). This includes updating language in policies, training materials, and employee handbooks, to reflect the distinction between biological sex and gender identity.
The ruling also affects recruitment and promotion practices, especially in roles or programmes aimed at increasing female representation. Employers must ensure that initiatives designed to support women are based on biological sex, in compliance with the Equality Act. For example, if an employer operates a management training scheme, with the aim of increasing female representation in senior roles, the employer may need to review the eligibility requirements of the scheme to reflect that eligibility will be based on biological sex, rather than acquired gender.
Employers should also reassess the provision of gender-specific facilities, such as toilets and changing rooms, to ensure they comply with the legal definitions established by the Supreme Court ruling. This may involve creating clear policies on the use of such facilities by transgender employees, while maintaining compliance with anti-discrimination protections.
Practical steps
In practice, this could mean offering gender neutral facilities. However, employers who do not have the space or resources to do so face additional challenges in balancing the obligations they owe towards employees of different sexes, without breaching the rights of transgender employees.
Following this decision, it is crucial for employers also to provide training to HR personnel and managers on the implications of the ruling. This training should cover the legal definitions of sex and gender, the rights and inclusion of transgender employees, and how to handle related workplace issues sensitively and lawfully.
Finally, employers must stay informed in relation to ongoing legal developments and ensure their practices comply with both the Equality Act and the Gender Recognition Act. This includes seeking legal advice, when necessary, in order to navigate complex situations involving gender identity and biological sex.
Final thoughts
The Supreme Court’s decision in For Women Scotland v Scottish Ministers marks a significant clarification in the interpretation of sex and gender under UK law.
Employers must take proactive steps to align their policies and practices with this ruling. However, in so doing they should remain mindful of the impact of this decision on transgender employees, and should endeavour to strike a balance between legal compliance, and ensuring they foster a welcoming and inclusive workplace.
Chelsea Feeney advises both businesses and individuals on a range of contentious and non-contentious employment matters.
Her experience includes drafting and negotiating employment documentation, advising on the implementation of employment policies, providing advice on terminations, defending claims in the Employment Tribunal, providing advice on business reorganisations and advising on the employment aspects of business acquisitions and disposals.
Chelsea is a member of the Employment Lawyers Association and sits on the Junior Editorial Board of LexisPSL.
