In a landmark ruling, the UK Supreme Court has provided crucial clarification on the meaning of ‘woman’ and ‘sex’ within the Equality Act 2010. In the case of For Women Scotland Ltd v Scottish Ministers, the Court confirmed that these terms refer to biological sex, not gender identity.

Background to the Case

The case arose from a challenge brought by For Women Scotland (FWS), a women’s rights organisation, against the Scottish Government’s interpretation of ‘woman’ in the Gender Representation on Public Boards (Scotland) Act 2018. This legislation aimed to increase female representation on public sector boards, and controversially included trans women within its definition of ‘woman.’

Following an initial successful appeal by FWS, the Scottish Government issued revised guidance aligning the definition of ‘woman’ with that in the Equality Act — but stated that individuals with a full Gender Recognition Certificate (GRC) would be legally recognised in their acquired gender. FWS launched a second judicial review, arguing that this interpretation still failed to properly reflect the meaning intended in the Equality Act, which they asserted is rooted in biological sex.

After losing in both the Outer and Inner Houses of the Court of Session, FWS took their case to the Supreme Court.

The Supreme Court’s Decision

The Supreme Court unanimously ruled in favour of For Women Scotland. It confirmed that within the Equality Act 2010, the terms ‘woman’ and ‘sex’ are based on biological sex rather than gender identity.

Importantly, the judgment clarified that a trans woman — even one who holds a Gender Recognition Certificate — is not considered a “woman” under the Equality Act for the purposes of sex-based protections.

However, the Court was also clear that trans individuals remain protected under the Equality Act, particularly under provisions relating to gender reassignment. The judgment gave examples showing that trans people are still safeguarded against discrimination, harassment, and victimisation — including on grounds of perceived gender or sex.

Implications

Originally centred around public sector board appointments, the ruling’s impact will extend far beyond this area. The decision has significant implications for policies on single-sex spaces — such as toilets, hospital wards, refuges, and prisons — as well as the design of inclusion policies across public services and workplaces.

Advocates for sex-based rights, including FWS, have welcomed the decision as an important affirmation of legal clarity and the protection of sex-based rights. On the other hand, many trans rights organisations have voiced concern that the judgment could lead to greater marginalisation of trans people, particularly in employment and service access.

What is clear is that this ruling marks a pivotal moment in the ongoing legal and societal conversation about how best to balance rights based on sex and protections based on gender identity. The polarised responses it has triggered reflect the complexity and sensitivity of these issues.

Recommendations for Employers

In light of the Supreme Court’s ruling, employers should review their practices carefully — not only to ensure legal compliance but also to foster a genuinely inclusive and respectful environment for everyone, including trans and non-binary individuals. Here are some practical steps to consider:

1. Review and Update Equality and Diversity Policies:
Ensure your internal policies accurately reflect the law, distinguishing between biological sex and gender reassignment where necessary. However, take the opportunity to reaffirm your organisation’s commitment to inclusion and protection for trans employees and service users.

2. Reconsider Single-Sex Spaces:
Where single-sex facilities are provided, ensure that they are compliant with the clarified definition of sex in the Equality Act. At the same time, consider whether introducing additional unisex or gender-neutral facilities could offer a more inclusive option, helping trans and non-binary individuals feel safer and more welcome without compromising legal requirements.

3. Strengthen Support for Trans and Non-Binary Employees:
Make clear that trans employees remain fully protected from discrimination under the Equality Act. Review internal support structures, such as employee resource groups, HR guidance, and leadership statements, to ensure trans voices are heard and valued.

4. Reassess Positive Action and Representation Initiatives:
If your organisation uses initiatives to promote greater female representation, ensure that eligibility criteria are legally sound. However, wherever possible, also develop separate and visible initiatives that support the advancement and well-being of trans individuals and other marginalised groups.

5. Update Staff Training:
Provide refreshed training for HR teams, managers, and employees on the distinction between sex and gender identity in law — while also focusing on practical ways to create respectful and affirming workplaces for trans people. Emphasise dignity, inclusive language, and active allyship.

6. Foster an Open and Respectful Culture:
Workplaces should not simply comply with the law but go further to build an environment where everyone feels they belong. Encourage open dialogue, active listening, and respectful conversations about diversity and inclusion, making sure both sex-based rights and gender identity protections are respected and supported.

If you would like further support with your DEI initiatives please get in touch on hello@HROptimisation.co.uk