Guidance for employers relating to the Supreme Court judgment in 'For Women Scotland v The Scottish Ministers’ published April 2025

On 16 April 2025 the UK Supreme Court issued a ruling setting out the definition of the terms “woman”, “man” and “sex” for the purposes of the 2010 Equality Act, at the same time the Court confirmed the legal protections for transpeople in respect of discrimination and harassment under that Act. Following the ruling, the Equality and Human Rights Commission (the Commission) published an interim update on the practical implications of the judgment.

A: The Supreme Court's task was to interpret the statutory meanings of "man," "woman," and "sex" in the Equality Act 2010. Clarifying these definitions would address the question: "Is a person with a full Gender Recognition Certificate (GRC), which recognises their gender as female, considered a 'woman' for the purposes of the Equality Act 2010 (EA 2010)?"

The case was brought as an appeal to clarify the definition of "woman" in the statutory guidance under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018 (GRPBA). The GRPBA guidance defined a woman as someone who: (i) possesses the protected characteristic of gender reassignment; (ii) lives as a woman; and (iii) is proposing to undergo, is undergoing, or has undergone gender reassignment. 'For Women Scotland' argued that this definition exceeded the legislative competence of the Scottish Parliament and sought clarity from the Supreme Court on the term "woman”.

The Supreme Court allowed the appeal and clarified that, for the purposes of the Equality Act 2010, the definitions of "sex," "man," and "woman" are based on biological sex, not certified gender. Therefore, transgender individuals with a Gender Recognition Certificate are not included under the definitions of "man" or "woman in relation to their assigned gender.

The judgment noted that gender reassignment and sex are separate bases for discrimination and inequality and said that the clarity on the definition does not disadvantage trans people (with or without a GRC) as they are able to invoke the protection of the Equality Act on discrimination and harassment on the basis of gender reassignment.

A: Under the Equality Act 2010, “woman” means a biological woman, “man” means biological man. If the individual is trans, their sex does not change for the purposes of the Act, even if they hold a Gender Recognition Certificate.

A: There are several implications to this judgment, but the Commission’s interim update focuses on how this will impact the workplace and service providers. The interim update says, in relation to workplaces:

• it is compulsory for employers to provide “sufficient” single sex toilets and “sufficient” single sex changing and washing facilities “where these facilities are needed”.
• Trans individuals should not be permitted to use facilities (such as bathrooms or changing rooms) of their preferred or assigned gender (regardless of whether or not they have a GRC) as this would mean they are no longer single-sex facilities and they must then be open to all employees. Therefore, trans women should not be permitted to use the women’s facilities and trans men should not be permitted to use the men’s facilities.
• Trans individuals should still have access to facilities they can use and, where possible, mixed-sex facilities should be provided. Trans individuals should not be put in a position where there are no facilities for them to use if there are facilities for biological men and biological women to use (the implication being that if there are no facilities for anyone, facilities do not need to be provided for trans people).

Where a workplace has toilet, washing or changing facilities that are in lockable rooms (not cubicles/stalls), that are intended for single person use, then they can be used by either men or women, whether they are biological or trans.

A: It is likely that what will be determined as “sufficient” will depend on the facts and circumstances of each situation, including the number of employees at a particular workplace. Our initial view (subject to updated guidance being provided) is that providing gender neutral/mixed-sex options for bathrooms (such as lockable rooms intended for use by one person at a time) could be sufficient, however this would depend on the number of single use bathrooms available, and the number of employees who wish to use them. There is, however, still some legal risk; but until we have further, more detailed guidance and until the Commission publishes the updated Code of Practice, this approach may be the simplest unless employees begin to raise specific complaints (each of which the employer would have to deal with on a case by case basis).

A: It’s been made clear that workplaces need to provide bathrooms that are only for biological men, bathrooms that are only for biological woman, and any gender bathrooms for use by anyone. Directing (for example) a trans man (and biological woman) to use the male bathroom would, as a result of the change in the definitions of “man”, “woman”, and “sex”, have the effect of that bathroom no longer being only for biological men. It is our opinion that, as of the date this document was drafted, the legally safest option for employers would be to direct trans people to use either the bathroom of their biological sex or any gender-neutral or single-occupancy bathrooms that are available.

A: Acknowledge their concern and try to understand their position. You should ask questions to ascertain the reason they’re uncomfortable and what they want to change. It might be that there is an obvious solution once you understand the reason for their complaint. As set out above, the interim update suggests that trans people should be directed to use either the bathrooms of their biological sex, gender-neutral bathrooms or single-occupancy toilets. You should ensure that you are providing alternatives for transgender employees so that everyone has a space that they can go to. Specific complaints will need to be dealt with on a case by case basis. However, you should also remind colleagues that you do not tolerate discrimination or harassment of any kind and all employee must behave in a professional manner.

A: You should talk to your transgender employee to confirm what their concerns are. It may be that you have a viable alternative available, in which case you can put this forward to them. However, the answer to this question does depend on what your alternative bathroom sources may be. If you don’t have any alternatives, you should consult with your transgender employee(s) to see if there are any other options, such as home working, while you work out an alternative. Ensure throughout these conversations that you seek to understand what their main concerns are and to see if you need to address any behaviour to protect those employees from harassment and/or discrimination. We should note that this is a quickly developing area of law and we would recommend seeking specialised advice if you have any concerns.

A: Listen to your employees and consult with them on solutions that will provide options for all employees. The guidance on this ruling is being updated and there may be more clarity on the practical implications of this ruling in the coming weeks and months.

A: The Commission’s update is interim and, as mentioned, it has confirmed that it is aiming to provide an updated Code of Practice to the UK government by the end of June for ministerial approval. We will be keeping a close eye on any further updates that can help to clarify the implications of the Supreme Court’s ruling in the workplace. In the meantime, if you have any questions or concerns, please don’t hesitate to get in touch for more bespoke advice.

Guidance written 15th May 2025