Posted: 17/04/2025
In a landmark decision, the Supreme Court has ruled in the case of For Women Scotland Ltd v Scottish Ministers that the terms 'woman' and 'sex' in the Equality Act 2010 refer to biological sex, not to gender identity.
The women's rights group, For Women Scotland (FWS), brought judicial review proceedings challenging the definition of 'woman’ in the Gender Representation on Public Boards (Scotland) Act 2018. Section 2 of the Act defines ‘woman’ as including a trans woman.
FWS's challenge was successful on appeal and, following that decision, Scottish ministers produced revised statutory guidance, which provided that the word ‘woman’ for the purposes of the Scottish legislation had the same meaning as in the Equality Act. The guidance went on to state that, where a full gender recognition certificate (GRC) has been issued, the person’s sex will be that of their acquired gender in accordance with section 9(1) of the Gender Recognition Act 2004. FWS Ltd brought further judicial review proceedings against the Scottish ministers in relation to the revised guidance. It contended that the definition of ‘woman’ in the Equality Act should be taken as a reference to a biological woman.
Both the Outer House and the Inner House of the Scottish Court of Session rejected their challenge, and FWS appealed to the Supreme Court.
In a unanimous decision, the Supreme Court confirmed that the terms 'woman' and 'sex' in the Equality Act refer to biological women and biological sex. This means that a trans woman with a gender recognition certificate which legally recognises their new gender should not be considered a woman for the purposes of the Equality Act.
In delivering its judgment, the Supreme Court was keen to stress that its decision does not mean that trans individuals are not protected under the Equality Act, noting that trans people are protected from discrimination on the ground of gender reassignment and also against direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender. The Supreme Court gave the example of a trans woman who is refused a job because she is perceived to be a biological woman. She would have a claim for direct discrimination because of her perceived sex, and her claim would be treated in the same way as a direct discrimination claim made by a biological woman based on her sex.
The case was originally about female representation on public sector boards, and an immediate impact of the ruling is that the inclusion of trans women in quotas must now be reconsidered. The implications of this case go way beyond this, however, and will have a particular impact on those who provide single-sex spaces such as toilets, hospital wards, refuges and prisons.
Advocates for sex-based rights, including FWS, have welcomed the decision, arguing that it provides clarity in the law and upholds the integrity of sex-based protections. Trans rights activists have, however, expressed concern that the ruling could lead to the increased marginalisation of trans individuals, particularly in relation to employment and access to services. What is clear is that this decision marks a significant and clarifying moment in the ongoing debate over gender identity and legal rights, while the polarised reaction to it highlights the complex and often contentious nature of balancing sex-based rights with protections for trans individuals.
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