Scottish ministers are facing renewed legal pressure after campaign group For Women Scotland launched a fresh court action, accusing the government of ignoring a landmark Supreme Court ruling on the legal definition of sex. The dispute, which has reignited fierce debate over gender policy in schools and prisons, centers on whether Scottish government guidance is out of step with the law as clarified by the UK’s highest court earlier this year.
On April 16, 2025, the UK Supreme Court ruled unanimously that the words “woman” and “sex” in the Equality Act 2010 refer to biological women and biological sex, not gender identity. According to BBC News, the case was brought by For Women Scotland after a series of challenges over Scottish legislation mandating female representation on public boards. The April ruling was hailed by supporters as a “watershed for women,” prompting public bodies across Scotland to review policies on single-sex spaces, including toilets, changing rooms, and hospital wards.
Despite the Supreme Court’s clear judgment, For Women Scotland contends that Scottish government policies regarding transgender pupils in schools and transgender people in custody remain “in clear breach” of the law. On August 15, 2025, the group lodged an ordinary action for reduction—the legal term for quashing—at the Court of Session, Scotland’s highest civil court. The summons was served on the Scottish Ministers, the Lord Advocate, and the Advocate General for Scotland, who now have 21 days to respond. If the policies are not withdrawn by then, the government will have to defend them in court.
At the heart of the legal challenge are two contentious policies: the 2021 guidance for Scottish schools on supporting transgender pupils, and the Scottish Prison Service’s policy for the management of transgender people in custody. The schools guidance states that young people should, “where possible, be able to use the facilities they feel most comfortable with.” It also allows transgender pupils to participate in physical education classes according to their gender identity. Meanwhile, the prison guidance allows transgender women to be admitted into the women’s estate if they do not meet established criteria for violence against women and girls and if there is no other basis to suppose they pose an unacceptable risk to others.
For Women Scotland argues that these policies are inconsistent with the Supreme Court’s ruling and “remain stubbornly in place, to the detriment of vulnerable women and girls.” In a statement, the group said: “Nothing has persuaded the government to take action and both policies remain stubbornly in place, to the detriment of vulnerable women and girls, leaving us little choice but to initiate further legal action.” The group is asking the court to declare both the school and prison guidance unlawful, to quash them in whole, and to suspend them in the meantime.
The Scottish government, for its part, has maintained a cautious stance. A spokesperson said, “It would be inappropriate to comment on live court proceedings.” First Minister John Swinney has welcomed the “clarity” provided by the Supreme Court ruling, but the government has indicated it is awaiting further guidance from the Equality and Human Rights Commission (EHRC) before issuing new advice to public bodies. The EHRC, however, has said repeatedly that ministers do not need to wait for its updated statutory Code of Practice before acting on the ruling. Dr Lesley Sawers, Deputy Chair and Scotland Commissioner at the EHRC, warned in July: “The current climate of uncertainty and widespread misinformation serves nobody. The law, as set out in the Supreme Court’s clear judgment, has been in effect since it was handed down on April 16. Service providers and public bodies should in any event be following the law while they wait for our statutory guidance, as it will not cover every eventuality.”
Some public bodies, including the Scottish Parliament and Police Scotland, have already updated their policies in response to the Supreme Court decision. The Scottish Parliament, for example, has designated male and female only toilets, while retaining gender-neutral facilities alongside them. Others, however, are still considering how to update their guidance and practical arrangements.
The Scottish Prison Service (SPS) reports that, of 8,190 prisoners currently in custody, 16 identify as transgender. The SPS does not disclose where these prisoners are being held, but its policy permits accommodation in the estate that matches a prisoner’s acquired gender at admission and at any later stage. The policy also allows a male prisoner with a history of violence against women or girls to be housed in the female estate, or—if deemed too high a risk to be placed there—to nonetheless take part in women-only activities and programmes. For Women Scotland has campaigned against this guidance since its introduction in February 2024, and has pressed the government to withdraw it, so far without success.
The legal wrangling has not come cheap. According to The Herald, the Scottish government has already spent around £216,000 fighting the first case brought by For Women Scotland and at least £157,816 on the second. The total bill to the taxpayer is now expected to exceed £600,000, raising questions about the cost of continued legal battles over gender policy.
Legal experts have weighed in on the controversy. Dr Michael Foran, incoming Associate Professor of Law at Oxford University, commented: “The rule of law is undermined when judicial decisions are ignored by governments seeking to create ambiguity where there is none. If the clear decision of the Supreme Court doesn’t prompt the Scottish Government to act, losing a third case brought by For Women Scotland might.”
For Women Scotland’s legal action is not a judicial review, but an ordinary action for reduction. If successful, the court would rule the disputed policies unlawful and effectively annul them. The group has said: “We are asking the court to issue a declarator that the school guidance and the prison guidance are unlawful and that they be reduced in whole. We are also asking that both policies are suspended in the meantime.” The group’s supporters argue that the government’s approach leaves “vulnerable women and girls” at risk, while critics of the legal challenge warn that rolling back the policies could harm transgender people’s rights and well-being.
The Scottish government’s next steps remain uncertain. With the EHRC expected to publish an updated statutory Code of Practice later this year, and a demonstration planned outside the Scottish Parliament to coincide with the court response deadline, the debate over gender, sex, and the law in Scotland is far from settled. As the legal battle moves forward, all sides are watching closely, knowing that the outcome could have profound implications for equality, safety, and public policy across the country.
For now, the policies remain in place, the legal arguments continue, and the eyes of Scotland—and beyond—are fixed on the Court of Session, waiting to see which way the scales of justice will tip.
