On 16 April 2025, the Supreme Court gave judgment in the case of For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent). The main issue put before the Court was whether a person whose gender recognition certificate (GRC) recognises that their gender is female (a “woman”) for the purposes of the Equality Act 2010 (Equality Act).
Background Summary
In 2018, the Scottish Government set up an initiative aimed at increasing the amount of women on public boards. To further this objective, the Gender Representation on Public Boards (Scotland) Act 2018 (GRPB 2018) was introduced.
Under the GRPB 2018, “woman” was defined as including the following:
- People with the protected characteristic of gender reassignment;
- People living as a woman; and
- People proposing to undergo / undergoing / who have undergone a gender reassignment process.
This meant that transgender women were classified as women under the GRPB 2018, and this position was challenged by the Appellant in 2020.
The Respondent subsequently issued new guidance which provided that the term “woman” was to be construed the same way under the GRPB 2018 as in the Equality Act. The guidance also confirmed that a person whose gender was recognised as female in their GRC was to be considered as a woman under the GRPB 2018.
The Appellant challenged this position in 2022 and argued that the term “woman” meant biological sex and so transgender women, despite being recognised as female for the purposes of the GRC, are not considered as women under the Equality Act. The Respondent’s position was that the Equality Act defines “woman” with reference to “certificated sex”, accordingly, a person who was recognised as female on their GRC was to be considered a woman under the Equality Act.
Supreme Court Judgment
The Supreme Court unanimously allowed the appeal and held that the term “woman” for the purposes of the Equality Act relates to biological sex and not certificated sex.
In reaching this decision, the Court considered the following:
- Interpreting sex with reference to a certificated sex hinders the coherence of the statutory definition of sex as a protected characteristic.
- Various references to sex within the Equality Act rely on the biological interpretation of man and woman, for example, provisions relating to pregnancy and maternity would be unworkable without the biological interpretations of sex.
- Reliance on certificated sex could adversely impact clarity and consistency.
- Services and spaces such as medical services, changing rooms and single sex higher education institutions require the biological interpretation of sex to function coherently.
- Applying the certificated sex interpretation could hinder the protections offered to other protected characteristics such as sexual orientation, for example it could interfere with the ability to have lesbian-only spaces.
The Court stressed that this judgment should not be seen as a victory for one side over the other. The Court also reaffirmed the fact that the Equality Act protects transgender people from discrimination under the ground of gender reassignment, which is a protected characteristic.
If you have queries, concerns or require any assistance with employment issues concerning the Equality Act, please contact a member of the Employment team at Glaisyers ETL.
