In the recent case For Women Scotland Ltd v The Scottish Ministers [2025] the Supreme Court ruled unanimously that that the terms ‘man’, ‘woman’ and ’sex’ in the Equality Act 2010 refer to a person’s biological sex, not the gender stated on a Gender Recognition Certificate (GRC). This means that someone with a GRC is not legally considered their acquired gender under the Equality Act.
However, the court made it clear that gender reassignment remains one of the nine protected characteristics under the Equality Act’s provisions and transgender people are still protected from discrimination, harassment or victimisation. Individuals do not need a GRC to be protected.
What do Employers need to do?
The court explained that using a biological definition was necessary to apply the Equality Act clearly and consistently in areas like single-sex spaces, sports, and pregnancy rights.
Although the case has attracted a lot of media attention, its practical impact is yet to be clarified. We are expecting to see a new Code of Practice from The Equality and Human Rights Commission (EHRC) in July 2025, and new case law is likely to emerge. We do have an interim update that suggests that, where possible:
- Both multi-sex toilets, washing or changing rooms and single-sex facilities should be provided
- Lockable toilets, washing or changing facilities, that are intended for the use of one person at a time, can be used by either women or men.
The EHRC Code of Practice is due to be released mid-July. Once we have the relevant information, we will inform you of any updates that may have practical implications for your business.
How can Backhouse help?
Employers must remain committed within their organisation to ensure an equality-driven environment. If you have any questions in relation to the Equality Act or need employment law advice, contact our expert team to book your free 30-minute consultation.
