Q&A: For Women Scotland Ltd v The Scottish Ministers

Unpacking the Implications of the Landmark Supreme Court Judgment in For Women Scotland Ltd v The Scottish Ministers

Author: Swyn Llyr

Key contact: Chris Aldridge

What do employers need to take away from the Supreme Court’s landmark judgment in the case of For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16? We’ve put together this handy Q&A to simplify the implications and help you stay compliant.

In a nutshell, this judgment provides clarity on the interpretation of “sex” under the Equality Act 2010 (“the EqA 2010”) and offers guidance on how to protect trans employees while ensuring compliance with the law. For a detailed case summary, click here.

How does the Supreme Court’s judgment define “sex” under the EqA 2010?

The Supreme Court concluded that the terms “sex”, “man”, and “woman” in the EqA 2010 refer to biological sex, not certificated sex. This means that a person with a Gender Recognition Certificate does not change their sex for the purposes of the EqA 2010.

What is a Gender Recognition Certificate (GRC)?

A GRC is a legal document which allows an individual to have their affirmed gender legally recognised. This recognition is in line with the individual’s gender identity and expression rather than their sex assigned at birth.

What are the implications of the Supreme Court’s definition of “sex” for your workplace policies?

As a result of the Supreme Court’s clarification, employers must interpret and apply sex-based rights and protections in line with this definition. To remain compliant and ensure fair treatment in the workplace, it is best practice for employers to review and update relevant policies, such as those on discrimination, harassment, and equal opportunities, to reflect the biological definition of sex as outlined in the judgment.

How can you protect trans individuals under the EqA 2010?

The Supreme Court’s ruling does not remove or diminish the protections afforded to trans individuals. Trans people continue to be protected under the EqA 2010 through the provisions related to gender reassignment discrimination.

Employers should therefore ensure that their workplace policies explicitly prohibit discrimination based on gender reassignment, irrespective of an individual’s gender identity. This supports an inclusive workplace while remaining aligned with the legal framework.

Can you investigate or request proof if you are unsure of an employee’s biological gender?

No. Employers should not investigate or request proof of an employee’s gender. Doing so can violate privacy rights and potentially lead to discrimination claims under the EqA 2010. Instead, employers should focus on fostering an inclusive and respectful workplace by accepting employees’ self-identification and privacy.

Importantly, an individual does not need a GRC to be protected under the protected characteristic of gender reassignment. Asking for a GRC when deciding how to treat someone, or whether to exclude them from a service or policy, can itself be unlawful and a breach of privacy. It is also essential not to make assumptions about whether someone is trans based on gender stereotypes, such as clothing or appearance.

What strategies can your business adopt to ensure compliance with the law while treating all employees fairly:

To ensure compliance and uphold fair treatment, employers should adopt the following strategies:

• Familiarise themselves with the judgment’s interpretation that “sex” in the EqA 2010 refers to biological sex, not certificated sex.
• Review and update policies, handbooks, and training materials to reflect the judgment’s interpretation.
• Provide targeted training to HR teams and line managers on the practical application of this definition and the implications for decision-making.
• Respect the privacy of employees, especially in relation to GRCs, and ensure all individuals are treated with dignity and respect.

How should you update your policies to ensure compliance with the clarified definition of “sex”?

Your policies should be updated to reflect that sex-based protections under the EqA 2010 apply to biological sex. Key areas for review include:

• Anti-discrimination policies: clarify that protections on the grounds of sex relate to biological sex and avoid language that inadvertently extends these rights based on acquired gender through a GRC.
• Maternity and pregnancy-related policies: ensure these apply specifically to biological women, covering areas such as pregnancy-related health and safety and breastfeeding accommodations.

How should you handle situations involving single-sex services or facilities?

Single-sex services or facilities should be designated based on biological sex, in line with the Supreme Court’s judgment. While the law permits restricting access based on biological sex, this can be complex in practice:

• A trans individual may present according to their gender identity, which can cause practical and emotional challenges.
• Access to a single-sex space does not automatically extend to trans individuals with a GRC unless there is a justified and proportionate reason. This means that a person who was born male but identifies as a woman does not have a right to use that space or service.

Employers are encouraged to conduct a careful assessment to ensure compliance with the law.

Under what circumstances can we offer a separate-sex service?

A separate-sex service may be provided only where a combined service would be less effective, and offering a separate service is a proportionate way to achieve a legitimate aim – such as protecting the health, safety, or dignity of service users.

The Equality and Human Rights Commission cites the example of a charity offering single-sex homeless hostels for men and women, where mixed accommodation would not meet service users’ needs effectively.

What are the implications of the judgment for your data collection and reporting practices?

In light of the ruling, employers should ensure that data collection and reporting align with biological sex, particularly for areas such as gender pay gap reporting and other equality monitoring activities. Ensuring compliance with the law while respecting employees’ privacy and upholding protections for trans individuals under the characteristic of gender reassignment is of utmost priority.

Whilst For Women Scotland Ltd v The Scottish Ministers has attracted much public attention, the Supreme Court has made clear that the trans community is still protected in law. The implications affect both trans women’s access to single-sex spaces and biological women’s rights to maintain such spaces for safety and dignity. This judgment has generated growing public interest and debate, particularly as its implications become more visible in complex areas, such as sport participation.

For support in drafting, updating, or reviewing your internal policies, please do not hesitate to contact our Employment team.