Posted: 01/05/2025
The Supreme Court's high profile ruling on 16 April 2025 in For Women Scotland Ltd v The Scottish Ministers confirmed that ‘sex’ means biological sex in the Equality Act 2010. This article looks at some of the implications of the decision from a charity law perspective.
The Supreme Court's judgment means that, under the Act:
If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC) and so it follows:
This judgment has significant repercussions for many organisations, including:
Charities will therefore realise that they cannot escape the effects of this ruling. This is likely to present real challenges to trustees and senior managers in their decision-making, as they struggle to do the right thing. In some respects, parallels may be drawn with the effect of Covid-19 in that many trustees at that time felt they must act decisively to help those in need of support, yet many subsequently discovered that they were constrained by their legal duties.
It is well established that trustees, when trying to decide on the best use of their charity assets, must, in all their decision-making act in good faith, balancing the relevant (but not the irrelevant) considerations, the public benefit requirement, the Equality Act and other applicable laws and Charity Commission guidance. No one can say that being a trustee is always easy.
In response to the judgment, the Equality and Human Rights Commission (EHRC) has published an interim update while it modifies its guidance. 'Duty bearers', including charity trustees, must follow the law and, as advisers to the charity sector, our charity team is acutely aware of the difficulties this ruling is likely to present. It is worth remembering that charity trustees must, according to Charity Commission guidance CC3, do what they (and no one else) decide will best enable the charity to carry out its purposes.
The Trustee Act 2000 contains the 'duty of care' which states that trustees must always exercise such care and skill 'as is reasonable in the circumstances'. What constitutes 'reasonableness' is necessarily a matter of judgement. But the overriding priority is to act in pursuit of the charity's objects, which may be found in the governing document.
Trustees who are finding it hard to work out how to tackle the implications of this judgment must first carefully check their governing documents and, if they feel that changes are necessary, they must ensure that they follow the correct procedures. For example, prior Charity Commission consent is needed to amend a charity's objects.
If a charity has objects which require the provision of a public space or services, for example almshouses and hospices, and the beneficiaries are defined within the charitable objects as 'women over 60 within the area of Old Town', what does that charity do when an application for support is received from a trans woman? According to the Supreme Court judgment, that application must be rejected since providing benefit to the applicant would not fall within the charity's objects.
But what must that applicant then do? Must they then try to find a charity which benefits either men only, or trans women or those with the protected characteristic of gender reassignment, or anyone regardless of biological sex? As things stand, the answer is yes since they cannot access the benefits provided by charities which exist only to support the needs of women.
Of course, it is not just a matter of checking the objects; the judgment will have other far-reaching implications for the way that charities carry out their activities. For example, trustees must also be conscious of the public benefit requirement, regardless of whether their activities are delivered for a wide or very narrow section of the public.
The public benefit requirement has two aspects - the ‘benefit aspect’ and the ‘public aspect’. For a purpose to be ‘for the public benefit’, broadly it must satisfy both these tests. The ‘benefit aspect’ is about whether the purpose is 'beneficial', and whether any detriment or harm that results from the purpose outweighs the benefit. The ‘public aspect' is about whom the purpose benefits – the question being whether the objects and activities of the charity benefit a 'sufficient section of the public'.
If we turn to the Charity Commission's guidance on public benefit, it states that 'a purpose cannot be a charitable purpose where any detriment or harm resulting from it outweighs the benefit. The Commission take detriment or harm into account where it is reasonable to expect that it will result from the organisation’s purpose. This will be based on evidence, not on personal views. Where the benefit of a purpose is obvious and commonly recognised, there is an even greater need for evidence of detriment or harm to be clear and substantial, if it is to outweigh that benefit.'
But how is a charity supposed to weigh the harm of declining to support a trans man or woman because the facilities provided by the charity are sex specific, and the trans person does not wish to use the facilities made available only to their 'biological sex'? If the toilets at a community swimming pool are sex specific, what can be done? Trustees have to comply with the law under the Equality Act as regards biological sex. One might believe that detriment or harm could indeed result to the individual in question who is being denied the facilities of their choice, and therefore can that detriment or harm be addressed in a manner which still complies with the law? Does that detriment or harm then 'outweigh' the benefit that the charity provides to other beneficiaries who are not trans such that a different approach should be considered? Is it the legal responsibility of the trustees to address their minds to this? The answer to that must surely be yes.
With finite resources, as a matter of law, charities must only ever use their assets to pursue their objects – the legal position is of fundamental importance since trustees will put themselves at risk of liability if they knowingly breach their legal duties. Nevertheless, when implementing the Supreme Court's ruling, they might also wish to consider what other action they could take to support individuals potentially adversely affected by this ruling and consider whether they wish to make any changes to the way they operate.
If trustees take the view that care for the vulnerable in their communities matters, whatever their gender or sex, then this may lead to them considering a change to their objects or altering the way that they make available their services and facilities to the public. Any changes may of course impact their finances, which could in turn cause potential negative impact to their current pool of beneficiaries.
Trustees might reasonably take the position that lives cannot be placed on a set of scales, weighing up whether potential harm is greater than potential benefit on an individual basis. There are unfortunately, currently, no easy answers. But, until there is further guidance, trustees must tread carefully and be mindful of their duties.
The EHRC has said that its updated guidance will be available in due course and it is working at pace to incorporate the implications of the Supreme Court’s judgment. It aims to provide the updated Code of Practice to the UK Government by the end of June for ministerial approval and welcome input from all those affected. Presumably the Charity Commission will in turn be updating its own guidance also.
In the meantime, the EHRC has said it is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Equality Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.
Our employment team has advised that in workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed. In workplaces and services that are open to the public, the current position is as follows:
The implications of this judgment are complex and important for charities. If you need support or legal advice on any of these points, or feel that your current approach or policies on gender issues now risk being non-compliant, both our charities and employment teams would be pleased to help you.
Email Virginia
01223 465479
Email Hilary
+44 (0)1223 465405
Email Daff
+44 (0)1865 813647
© 2025 Penningtons Manches Cooper LLP.
All rights reserved.
Website design by Frontmedia / Dynamic Pear
Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.
Return to news headlines