Posted: 28/05/2025
Recently, the UK Supreme Court ruled in For Women Scotland Ltd v The Scottish Ministers that the term 'sex' in the Equality Act 2010 (the Act) refers exclusively to biological sex. This judgment has significant implications for the interpretation of equality law and its application across various sectors, including the education sector.
The Supreme Court's judgment states that, under the Act:
If an individual identifies as trans, they will not be considered to have changed sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC) and so it follows that for the purposes of the Act:
While some may see this as a 'victory' for gender critical campaigners, the Supreme Court emphasised that people covered under the protected characteristic of gender reassignment have not lost any of their existing rights. They can continue to bring claims if they face harassment or discrimination based on gender reassignment or on their actual or perceived sex.
The Supreme Court's ruling carries significant implications for universities and other higher education institutions, many of which are charities. These institutions must now carefully consider how the legal definition of sex as biological sex affects their policies, services, and governance both as regards women and men, but also those who have reassigned their gender, or may be gender fluid. This article covers some specific issues, including the highly contentious topic of toilets and changing rooms.
This is perhaps where this decision is likely to present real practical challenges to organisations in their decision-making, especially where many, as they struggled to do what they considered to be the right thing, have allowed individuals to self ID and use the spaces in which they felt comfortable. In some respects, parallels may be drawn with the effect of Covid in that, at that time, many institutions felt they must act decisively to help those in need of support, and yet many subsequently discovered that they were constrained by their legal duties.
It is not compulsory to provide single-sex facilities or to have single-sex facilities such as toilets and changing rooms. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act.
The Act allows separate facilities under Schedule 3 part 7 of the Act where:
Protecting the privacy, safety and dignity of women is a legitimate aim and excluding people of the opposite sex from sex-segregated facilities will be a proportionate response to achieving that aim. There is no need for a case by case analysis.
If an organisation provides single-sex facilities such as toilets or changing rooms this judgment therefore makes it clear these must relate to biological sex, as otherwise they will become mixed-sex. If the facilities become mixed-sex, claims may be brought:
And those claims may be difficult to defend.
Although claims may also be brought by those who identify as a different gender to their biological sex, it will not be gender reassignment discrimination to exclude someone from a single-sex space that does not align with their biological sex, and any claim based on an individual seeking to use the facilities which are not for their biological sex is likely to fail.
This does not mean there needs to be 'toilet police', and in practice that would be unattractive if not impossible to operate. Signs should make it clear which facilities people should use.
The single and separate sex provisions set out in the Act do not apply to workplace toilets or changing facilities (unless they are jointly used by customers or other service users).
However, there are rules which do apply in workplaces, where it is compulsory to provide sufficient single-sex toilets, under the Workplace (Health, Safety and Welfare) Regulations 1992. These provide that employers should ensure:
The current position is therefore as follows:
If a separate provision is not made, your employees may bring claims in the employment tribunal for discrimination, and your students and customers may bring claims in the county court. Claims on the basis that there are no facilities based on biological sex are likely to be upheld. It is therefore safer to ensure you have facilities segregated according to biological sex, and a policy to make it clear that people cannot self identify into a space which does not align with their biological sex, whatever their gender identity.
Trans employees or students or customers who object to the policy may of course argue that it indirectly discriminates against them on the basis of their gender reassignment. As above, however, it will not be gender reassignment discrimination to exclude someone from a single-sex space that does not align with their biological sex, and any claim based on an individual seeking to use the facilities which are not intended for their biological sex is likely to fail by reference to the 1992 regulations.
Although it is wise to also provide gender neutral spaces, converting all of your facilities to gender neutral doesn’t avoid such risks. This is because providing mixed-sex facilities may be indirectly discriminatory, particularly against women who need single-sex facilities (whether for religious, health or other reasons). A better option is to provide a third gender neutral option, available for anyone to use if that is possible. This does not mean that disabled or accessible facilities should automatically be relabelled as accessible or gender neutral, because disabled employees may not be able to use any other facility and will be disadvantaged by the arrangement. The rights of disabled users should therefore also be considered in any relabelling which may be proposed and balanced against the rights of others.
As with toilets, it is not compulsory to provide single-sex facilities or to have single-sex accommodation. However, where colleges or halls of residence are designated as single-sex for women or men, it is likely that this has been done under the exceptions to the Act contained in Schedule 3 part 7, set out above.
Again, protecting the privacy, safety and dignity of women is a legitimate aim and excluding people of the opposite sex from sex-segregated facilities is a proportionate response to achieving that aim. Organisations do not therefore need to undertake a case by case analysis of the position of each student but can operate a blanket policy that applies to everyone. If they do so, however, the policy should be based on biological sex in order to fall within the exemption in the Act.
Universities and education institutions often provide sex-specific services such as counselling, sports teams, and societies. The ruling may affect eligibility criteria for participation or access, particularly where services are legally defined as single-sex. There is no need for the services to be provided on a single-sex basis, but if a service is single-sex then that will now mean biological sex. By way of example, if, within a student union, a role is reserved for a woman under the constitution of the student union, then the person standing for or occupying that role must be biologically female otherwise it is no longer being reserved for women. This reflects the factual background to the For Women Scotland case.
The Supreme Court’s ruling also has important implications for grant-making schemes designed to support women in certain areas such as STEM. Funders and higher education institutions offering such grants must now ensure that eligibility criteria align with the law. This may mean that trans women could lawfully be excluded from schemes explicitly targeting 'women'.
The decision also has direct implications for single-sex education. Where a school, college or other institution (many of which are either charities or public bodies) have single-sex policies in place they must now ensure that their admissions policies, facilities, and safeguarding practices align with the legal definition of biological sex.
For example, a girls’ school or college may lawfully restrict admission to pupils who are biologically female, and the provision of single-sex toilets and changing rooms must also be based on biological sex rather than gender identity.
Where a facility is stated to be 'trans inclusive', policies and governing documents may therefore need to be reviewed if the organisation is both purporting to provide a single-sex facility, but also to allow a trans student to self ID into that space. Otherwise the organisation will not be able to rely on the exceptions in the Act as the facility will no longer be single-sex. This ruling therefore requires organisations to revisit policies concerning trans students, access to trans inclusive facilities and participation in sex-specific activities including sport. This may include a careful review of the wording of their funding objectives and consideration of whether amendments are needed to remain compliant with the law.
The ruling is about the law, and the Act. It is not about public opinion, nor what is or may be seen as philosophical debates or matters of public interest.
In particular the Supreme Court made it clear that people protected under the Act under the characteristic of gender reassignment have not lost any of their existing rights and can continue to bring claims if they face harassment or discrimination based on gender reassignment or on their actual or perceived sex.
Therefore, although the ruling may influence debates around gender identity and sex within academic settings, institutions must balance the protection of academic freedom with their legal obligations under equality law, ensuring that discussions remain respectful and compliant with institutional values and legal duties. The ruling is not a charter to harass those with differing views, and even if those views are potentially considered offensive to some, care needs to be taken to ensure free speech is not adversely affected.
The recent £585,000 fine imposed by the Office for Students (OfS) on the University of Sussex has significant implications for how universities approach the discussion of trans and gender issues. These implications should not be ignored as there is an expectation by the OfS that universities must uphold freedom of speech and academic freedom, even when navigating sensitive and contested topics. Institutions are under increased pressure to ensure that equality and inclusion policies do not inadvertently suppress legitimate academic discourse or contravene legal obligations. While the legal position under the Act may be clear (or at least clearer), the case has prompted broader concerns across the sector about how to balance protections for minority groups with the legal duty to foster open debate.
If you need advice on any of these points, or feel that your current approach or policies on gender issues now risk being non-compliant, please do not hesitate to get in touch.
© 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 
