On April 16, 2025, the UK Supreme Court delivered its unanimous judgment in the case of For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, allowing the appeal and addressing the interpretation of the Equality Act 2010 (EA 2010) in relation to gender reassignment and sex discrimination.
For Women Scotland Ltd, a feminist organization, challenged the statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act). The guidance stated that a trans woman with a full Gender Recognition Certificate (GRC) should be treated as a woman for the purposes of achieving the gender representation objective of 50% women on public boards. For Women Scotland argued that this interpretation was unlawful and outside the legislative competence of the Scottish Parliament.
The Supreme Court permitted four parties to intervene and allowed two of those to make oral submissions at the hearing. One of the parties making oral submissions, Sex Matters Limited, instructed David Welsh, led by Ben Cooper KC of Old Square Chambers. The Supreme Court specifically noted the contributions from Sex Matters Limited, stating that they “gave focus and structure to the argument” in paragraph 35 of the judgment.
The key issue at hand was whether the EA 2010’s references to “sex,” “man,” “woman,” “male,” and “female” should be interpreted in light of the Gender Recognition Act 2004, which allows individuals to change their legal sex by obtaining a GRC. The Supreme Court emphasized the importance of clarity and consistency in statutory interpretation, particularly for an Act like the EA 2010, which regulates day-to-day conduct across various sectors.
In a detailed judgment, the Supreme Court analyzed the definitions of “sex,” “man,” and “woman” in the EA 2010, concluding that these terms refer to biological sex. The Court found that interpreting “sex” as certificated sex would create incoherent provisions, especially regarding pregnancy and maternity discrimination, single-sex services, communal accommodation, and sports.
The distinct protections for gender reassignment and sexual orientation in the EA 2010 were also discussed. The Supreme Court noted that conflating these characteristics with certificated sex would create sub-groups within those sharing the protected characteristic of gender reassignment, granting greater rights to those with a GRC. While the decision emphasizes biological sex in the context of sex discrimination, it does not diminish protections available to trans people under the EA 2010. Trans individuals remain protected from discrimination based on gender reassignment and can still bring claims for direct and indirect discrimination, harassment, and victimization.
Moreover, the Supreme Court examined the positive action provisions and the Public Sector Equality Duty (PSED) in the EA 2010, which aims to address the needs and disadvantages of groups with shared protected characteristics. The Court found that a certificated sex interpretation would undermine the ability to conduct robust analyses and address the distinct needs of women and trans people separately.
In conclusion, the Supreme Court ruled that the EA 2010 makes provision within the meaning of section 9(3) of the GRA 2004, displacing the rule in section 9(1). The terms “sex,” “man,” and “woman” in the EA 2010 refer to biological sex, not certificated sex. Consequently, the Scottish Government’s guidance was deemed incorrect, and the definition of “woman” in the 2018 Act is limited to biological women.
This decision has significant implications for the interpretation of anti-discrimination law in the UK, ensuring that the protections afforded by the EA 2010 are applied consistently and coherently. The ruling underscores that while the GRA 2004 allows individuals to change their legal gender, this change does not affect the interpretation of sex in the EA 2010. Public authorities must consider the distinct needs and disadvantages of biological women and men separately from those of trans people. This ensures that policies aimed at promoting equality and eliminating discrimination are based on clear definitions.
Organizations and public bodies may need to review and adjust their policies and practices to align with this interpretation of the EA 2010. This includes ensuring that single-sex services and positive action measures are correctly applied based on biological sex. Overall, the Supreme Court’s decision provides clarity on the interpretation of sex in anti-discrimination law, reinforcing the distinction between biological sex and gender reassignment while ensuring all groups receive appropriate protections under the law.
David Welsh, a public law specialist who has appeared in courts at all levels, including the Supreme Court, represented one of the parties in this landmark case. His involvement underscores the high-profile nature of this litigation, which has sparked widespread debate across the UK.
The ruling has been met with mixed reactions. For Women Scotland celebrated the decision, viewing it as a victory for women’s rights. “Today, the judges have said what we always believed to be the case: that women are protected by their biological sex,” said Susan Smith, co-founder of For Women Scotland.
Conversely, human rights organizations like Amnesty International expressed disappointment, warning of potentially concerning consequences for trans individuals. “The outcome of today’s judgment is clearly disappointing,” stated Sacha Deshmukh, chief executive of Amnesty International UK. “It is important to stress that the court has been clear that trans people are protected under the Equality Act against discrimination and harassment.”
Meanwhile, LGBTQ charity Stonewall described the ruling as “incredibly worrying for the trans community,” emphasizing the need for ongoing advocacy to ensure equal rights for all individuals, regardless of gender identity.
As the implications of this ruling unfold, it is clear that the UK’s legal landscape surrounding gender identity and sex discrimination will continue to be a topic of intense public and political scrutiny.
