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The Supreme Court rules that a "woman" in the Equality Act 2010 is a biological woman but cautioned against reading this as a triumph of one of more groups against another.
The case For Women Scotland Ltd v The Scottish Ministers reached the UK Supreme Court in November 2024 and Judgment was handed down on 16 April 2025. Set against the background of years of legal challenge, the issue was whether a person with a gender recognition certificate that recognises their gender as female falls within the definition of ‘woman’ in the Equality Act 2010.
Background
The issue arose from a challenge to statutory guidance on the Gender Representation on Public Boards (Scotland) Act 2018, which aimed to increase the representation of women on Scottish public authority boards. Scottish Ministers issued statutory guidance stating that ‘woman’ includes those with a full gender recognition certificate ("GRC") that their acquired gender is female, and they said that this was the same interpretation as given to 'woman' in the Equality Act.
For Women Scotland issued legal proceedings challenging this definition and asserting that a 'woman' under the Equality Act is a biological woman. The challenge was unsuccessful at first instance and on appeal in the Inner House, leading to the current appeal in the Supreme Court.
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Subscribe nowSupreme Court Judgment
The Supreme Court has now decided that the terms “sex”, “man” and “woman” in the Equality Act 2010 refer to biological sex.
The Judgment was that to decide otherwise would render the Equality Act incoherent and impracticable to operate. It noted that there are additional provisions in the Equality Act that, it said, require a biological interpretation of “sex” in order to function coherently, including in relation to sport, separate spaces and single sex services.
The Supreme Court acknowledged that the Judgment would cause joy for some and disappointment for others but said that the Court's role was to interpret statutory provisions.
The Supreme Court emphasised that the Equality Act gives transgender people protection against discrimination in their acquired gender, whether or not they possess a GRC and stated that a "certificated sex interpretation" (i.e. defining "woman" as including trans women with a GRC) would give trans people with a GRC greater rights than trans people without a GRC.
To discuss the implications for your business and how to support employees affected by this decision, please contact your usual Fieldfisher contact.
