For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025)

For Women Scotland challenged Scottish Government guidance on the Gender Representation on Public Boards Act 2018. The Supreme Court held that 'sex' in the Equality Act 2010 means biological sex only, not certificated sex obtained through a Gender Recognition Certificate. Trans women with GRCs are therefore not 'women' for EA 2010 purposes.

Facts

For Women Scotland, a feminist voluntary organisation, challenged statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018. Following an earlier successful challenge to the definition of ‘woman’ in that Act, the Scottish Ministers issued revised guidance stating that trans women with a Gender Recognition Certificate (GRC) would count as women for achieving the 50% gender representation objective on public boards. The guidance relied on section 9(1) of the Gender Recognition Act 2004, which provides that a person’s gender becomes ‘for all purposes’ their acquired gender upon obtaining a GRC.

Issues

The central issue was whether references to ‘sex’, ‘woman’ and ‘man’ in the Equality Act 2010 should be interpreted as including persons who have acquired a certificated sex through possession of a GRC under the GRA 2004, or whether these terms refer exclusively to biological sex.

Judgment

The Supreme Court unanimously allowed the appeal, holding that ‘sex’ in the Equality Act 2010 means biological sex only. The Court found that section 9(3) of the GRA 2004 disapplies the rule in section 9(1) where legislation is inconsistent with that rule. The EA 2010 makes such provision because a certificated sex interpretation would render the Act incoherent and unworkable.

Key Reasoning

The Court examined the definitions in sections 11 and 212(1) of the EA 2010, which define ‘woman’ as ‘a female of any age’ and ‘man’ as ‘a male of any age’. The ordinary meaning corresponds with biological characteristics. A certificated sex interpretation would create heterogeneous groupings cutting across the protected characteristic of sex in an incoherent way.

Provisions relating to pregnancy and maternity (sections 13(6), 17 and 18) can only refer to biological sex since only biological women can become pregnant. The Court rejected the Inner House’s suggestion that ‘woman’ could bear a variable meaning throughout the Act, finding this neither clear, constant nor predictable.

The Court found that numerous other provisions would be rendered unworkable by a certificated sex interpretation, including those concerning separate and single-sex services (Schedule 3), communal accommodation (Schedule 23), single-sex higher education institutions (Schedule 12), single characteristic associations and charities, sport (section 195), and the public sector equality duty.

Protection for Trans People

The Court emphasised that its interpretation does not disadvantage trans people. They remain protected through direct discrimination claims based on perception or association, harassment claims, and indirect discrimination claims under section 19A which extends protection to those suffering the same disadvantage as a protected group.

Implications

This judgment establishes definitively that biological sex is the meaning of ‘sex’ throughout the Equality Act 2010. Trans women with GRCs are not ‘women’ for the purposes of sex discrimination provisions, though they retain protection under the gender reassignment provisions and through perception-based discrimination claims. The decision has significant implications for single-sex services, associations, charities, sport, and public sector equality duties, clarifying that these provisions operate by reference to biological sex.

Verdict: The Supreme Court unanimously allowed the appeal, declaring that the Scottish Government's guidance was incorrect. 'Sex' in the Equality Act 2010 means biological sex only, and a person with a GRC in the female gender does not come within the definition of 'woman' for sex discrimination purposes.

Source: For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025)