Monthly Highlights – UK Employment Law – April 2025

In this month’s instalment, our team summarises the latest UK case law and developments in employment law – and their implications for employers.

1. In For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, the Supreme Court ruled that under the Equality Act 2010 (the “EA 2010”), the terms “sex,” “man” and “woman” refer to biological sex, not certificated/acquired sex. The Court emphasized that any other interpretation would render the EA 2010 incoherent and impracticable to operate.
   
   

   Facts/Legal Proceedings:

   • The appeal marks the second time For Women Scotland (“FWS”) has brought a judicial review challenging statutory guidance issued by the Scottish Ministers under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”).
   • After FWS successfully challenged the inclusion of trans women in the definition of “woman” under the 2018 Act, the Scottish Ministers issued revised statutory guidance. This new guidance stated that a person with a full Gender Recognition Certificate (GRC) confirming their acquired gender as female would be considered to have the sex of a woman.  As such, her appointment to a public board would count towards achieving the 50% objective set out in the 2018 Act. The Scottish Government Legal Directorate later confirmed in a letter to FWS that their position was that a trans woman with a full GRC is regarded, under the Equality Act 2010, as having acquired the sex of a woman and, therefore, is a “woman” in sections 11 and 212(1) of the EA 2010.
   • FWS then launched the current challenge, arguing that the revised guidance is unlawful and not within the devolved competence of the Scottish Government. The appeal was denied at the court of first instance in Scotland and then again on first appeal.
   • The issue at the centre of the appeal to the Supreme Court was whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” should be interpreted to include individuals who have legally changed their gender under section 9 of the Gender Recognition Act 2004 by obtaining a Gender Recognition Certificate (GRC).

   Findings:

   • The Supreme Court judgment set out that the terms “man,” “woman” and “sex” in the EA 2010 refer to biological sex only and not certificated/acquired sex for the following reasons:
     
     
     • Because the EA 2010 is an “amending and consolidating statute” and because neither the prior legislation on which it was focused nor the EA 2010 itself explicitly modified the meanings of “man,” “woman” or “sex,” the Court held that these terms must retain their original meaning — referring to biological sex.
     • Interpreting “sex” as certificated/acquired sex in the EA 2010 would lead to incoherence, especially in provisions related to pregnancy, maternity, protections specifically affecting women, single-sex spaces/services (i.e. changing rooms, hostels and medical services), communal accommodation, single sex higher education, fairness in women’s sport, single-sex associations/charities, the armed forces, and the effectiveness of the public sector equality duty, which must each refer to biological sex to remain practicable. Additionally, the terms “man,” “woman” and “sex” needed to be interpreted consistently throughout the EA 2010 and could not have different meanings in the sections where issues would arise if they were held to mean acquired/certificated sex.
     • The consistency and clarity of the interpretation of the act were held to be vital in enabling employers to (i) recognise their obligations to identify individuals with a shared protected characteristic and (ii) comply with the obligations in the EA 2010, which afford protection to those groups accordingly.
   • The Supreme Court also held that gender reassignment and sex are separate bases for discrimination and that interpreting “sex” as certificated/acquired sex would create impractical sub-group distinctions and weaken protections for sexual orientation (e.g., by affecting the ability of the lesbian community to maintain lesbian only groups and spaces).
   • Finally, the judgment noted that by interpreting “sex” as certificated/acquired sex, a dual class of rights would be created for trans people with GRCs and those without. This would also create difficulties for service providers and employers who, per the GRA 2004, cannot ask if someone holds a GRC.

   Takeaways:

   • The Supreme Court judgment expressly and clearly stated that the decision does not erode the protections from discrimination that are afforded to trans people under the EA 2010. It noted that, as gender reassignment is a protected characteristic under the EA 2010, it remains unlawful to discriminate against trans people.
   • Following the judgment, the Equality and Human Rights Commission (the “EHRC”) has issued an interim update reminding employers that it is mandatory to provide single-sex facilities where these are needed. The update notes that trans women (those whose biological sex is male) should not be permitted to use women’s facilities and that trans men (those whose biological sex is female) should not be permitted to use men’s facilities.
     
     
     • The EHRC’s interim update also notes that, whilst it isn’t compulsory for services open to the public to provide single-sex facilities, they can be provided on a single-sex basis if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the EA 2010. As service providers’ and employers’ obligations in this area are not clear and obvious, the interim update goes into further detail on the specifics of the guidance in this area, which we recommend reading.
   • The expression of the belief that sex is biological and not equivalent to gender is protected under the EA 2010. As discussed in our previous update, any such belief is only protected if it is expressed appropriately.

Ultimately, in the wake of this judgment, employers should ensure that they aim to balance the rights of both trans people and non-trans people when deliberating on issues that affect both groups. Sweeping, unilateral measures taken without due consideration for all those affected could still be deemed discriminatory, and engaging in a genuine open dialogue with those affected would be key.