On 16th April 2025, the Supreme Court ruled unanimously that the words ”man”, “woman” and “sex” in the Equality Act 2010 (“the Act”) refer to sex assigned at birth, rather than to gender identity.
This means that the legal definitions of “man” and “woman”, for the purposes of the Act, excludes transgender men and transgender women respectively.
This case – For Women Scotland Ltd v The Scottish Ministers [2025] USCK 16 – has received widespread attention and prompted heated discussion. We look at what the decision means for employers and businesses.
The Supreme Court’s landmark ruling means that, when interpreting the Equality Act 2010, a “woman” is someone who was assigned female sex at birth. A transgender woman, regardless of whether or not they hold a Gender Recognition Certificate (GRC), is not included in the definition of “woman” under the Act.
What does this decision mean for employers/businesses?
The ruling is an important one, as many legal protections and services rely on the definitions of “sex”, “woman” and “man” in the Equality Act 2010. For example, provisions and protections for maternity and pregnancy rights, access to single-sex spaces/facilities, and protections based on sexual orientation.
What happens to legal protections for transgender people?
Although the judgment is a controversial one and has been heavily criticised, the Supreme Court warned that the judgment should not be interpreted as a victory for one or more groups in society over others, and reiterated that the Equality Act will continue to protect transgender people from discrimination (including direct, indirect, by association and/or by perception), harassment and victimisation via the protected characteristic of gender reassignment, and that this has not changed.
Anyone who is, or is perceived to be, undergoing or having undergone gender reassignment can claim discrimination on these grounds under the Equality Act 2010. This includes individuals who are proposing to undergo reassignment, those in a process of reassignment, and those who have completed the process, whether or not they have a Gender Recognition Certificate.
No particular process, medical diagnosis or treatment is required for the protection to apply, only that the person is involved in the personal process of reassignment. This means that individuals are protected throughout their transition journey, right from the moment at which they start to contemplate the process of transition.
Do I need to make changes to employee facilities or the services my business, school or organisation provides? Where can I find guidance about this?
On 25 April 2025, the Equality and Human Rights Commission (EHRC) published guidance: “An Interim Update on the Practical Implications of the UK Supreme Court Judgment” which can be accessed here.
However, readers should exercise some caution as the interim guidance has been criticised as unhelpful and not particularly clear. The EHRC is in the process of consultation on the wider implications of the ruling. Eventually, a statutory Code of Practice will be issued to provide further clarification. The EHRC plan to lay the draft statutory code before Parliament at the end of this month.
What does the EHRC’s interim guidance say?
According to the interim guidance (NOTE: not statutory guidance), the Supreme Court ruled that references to “sex” in the Equality Act 2010 are to “biological sex” (assigned at birth).
This means that, under the Act:
- A “woman” is a person who was assigned female at birth;
- A “man” is a person who was assigned male at birth; and
- A transgender person’s legal “sex”, remains their sex assigned at birth, regardless of whether or not they have obtained a GRC.
This judgment has implications for many different organisations, including workplaces, public services (such as hospitals, refuges, shops and restaurants), sporting bodies and schools.
In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where needed.
It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it may be deemed indirect sex discrimination against women if the only provision is mixed-sex.
In line with this ruling, in workplaces and services that are open to the public:
- transgender women should not be permitted to use the women’s (single-sex) facilities; and
- transgender men should not be permitted to use the men’s (single-sex) facilities.
This is because the facilities would no longer be deemed “single-sex” and, therefore, must be open to all users of the opposite sex. However, where single-sex facilities are open to both men and women, transgender people should not be put in a position where there are no facilities for them to use, and additional facilities should be provided. Where possible, mixed-sex toilet, washing or changing facilities, in addition to sufficient single-sex facilities, should be provided. Where toilet, washing or changing facilities are in lockable rooms (not cubicles) which contain washing facilities (i.e. a sink) which are intended for the use of one person at a time, they can be used by men or women.
Regarding schools, competitive sports and associations, the interim guidance goes on to say that:
- The EHRC intends to address rules about when competitive sports can be single-sex;
- Schools in England and Wales must provide single-sex toilets for children over the age of 8, and single-sex changing facilities for children over the age of 11.
- Transgender children should not be permitted to use changing or toilet facilities which correspond to their gender identity. Suitable alternatives may be required.
- An association of 25+ people can have single-sex membership, and can be limited to people who each have two protected characteristics (for example, an association for gay men or for lesbian women). A men’s only (single-sex) association, for example, should not admit transgender men.
Why is the interim guide unhelpful and why has it been criticised?
Transgender people are protected under the Equality Act from acts of direct and indirect discrimination and harassment.
The interim guidance is unclear in terms of how organisations can follow the guidance whilst applying different groups’ respective protections in an appropriate and proportionate way.
What can employers do?
The judgment has understandably caused upset and anxiety within the LGBTQ+ community and its allies. Employers should consider whether transgender staff may require additional support in the wake of the judgment, and consider the wider messaging it may deliver to all staff. Aside from the EHRC’s interim guidance, health and safety legislation for workplaces permits single-room, mixed-sex toilets but, where this is not possible, there must be separate facilities for men and women. Unfortunately, this legislation does not make reference to transgender employees.
Given the interim guidance that transgender people should not use the facilities corresponding to their gender identity, it is wise for employers to give serious consideration to implementing mixed-sex facilities. Some employers have taken the decision to await the EHRC’s statutory Code of Conduct before making any changes to their facilities. Ultimately, employers will want to encourage a workplace culture where all views and identities are respected, and all employees feel comfortable and supported. Employers should look at training provision and staff policies which aim to ensure equality in the workplace, which must be the foundation of promoting an open and supportive workplace culture for all.
Summary
- On 12th April, the Supreme Court ruled that, for the purposes of the Equality Act 2010, “sex” refers to whether an individual was assigned male or female at birth (termed “biological sex” in the relevant judgment).
- Equality and Human Rights Commission has published interim guidance following the Supreme Court’s judgment, including the provision of single-sex toilets and changing facilities in workplaces and public services.
- Gender reassignment is a protected characteristic for the purposes of the Equality Act. Transgender people are protected from acts of direct and indirect discrimination and harassment on this basis.
If you have questions about your obligations as an employer, please contact Jane Smith at [email protected] for an informal, confidential chat.
This article was first published in the June 2025 edition of our newsletter, Moore Law Monthly. Join our mailing list by signing up on our Linktree here: https://linktr.ee/moorelaw.