On the 17th of April 2025, in the highly anticipated ruling on For Women Scotland Ltd v Scottish Ministers, the Supreme Court held that the terms “sex”, “man” and “woman” in the Equality Act 2010 referred to “biological sex”. This judgment has a significant impact on how considerations such as sex-based rights, occupational requirements and single-sex spaces are to be applied and used in the workplace. Whether you are an employer wanting to ensure your HR policies reflect the new legal ruling accurately, or a transgender employee wondering whether your workplace protections are now going to change, properly understanding this ruling is crucial so here’s what you need to know.
What Does The Outcome Of This Case Mean In Practice?
By defining the terms “sex”, “man” and “woman” by reference to biological sex, the Supreme Court has, in simple terms, decided that for the purposes of the Equality Act 2010, a “woman” may only be classed as such if this was her biological sex at birth. This applies even where individuals may have legally changed their gender identity, and whether they have received a Gender Recognition Certificate or not.
In the view of the Supreme Court, the definition of “man” and “woman” needed to be uniform and workable throughout the Equality Act 2010. As an example of why this could only be achieved if “sex” was defined by reference to biology, the court looked to the provisions relating pregnancy and maternity discrimination. Since only biological women may become pregnant, the provisions would be unworkable if the term “woman” was to include transgender women.
In practise, this has a direct implication on employment rights, occupational requirements and single-sex spaces in the workplace. Employers are now legally entitled to require applicants to be biologically female for job roles where this is a “proportionate means of achieving a legitimate aim”. This could be relevant for roles in places such as women’s shelters and rape crisis centres, female-only medical wards and care homes.
Additionally, spaces created for single-sex may use now legally exclude individuals based on their biological sex, provided that these exclusions are, again, proportionate and for a legitimate aim such as privacy or safety. Already, Barclays has announced it will prohibit trans women from using female bathrooms in its buildings. This may well lead to policy changes across the country as other organisations follow suit.
What Do I Need To Know As An Employer?
For employers, this new ruling may provide an opportunity for greater clarity and understanding in an area that has long been complex and confusing for many. However, great care must be taken to ensure that policies, practises and procedures are in line with this new legal ruling, whilst also being inclusive and supportive of transgender individuals.
It is important to note that this ruling does not remove the protection from discrimination and harassment previously awarded to transgender individuals under the Equality Act’s provision for gender reassignment. Transgender people are also still able to claim sex discrimination if they are discriminated against because they are perceived to be their acquired gender.
What is clear, is that the Equality Act 2010 protects all trans people against discrimination and will continue to do so. It is therefore incredibly important for employers to ensure that whatever gender people identify as, they feel safe and without fear of discrimination in their workplaces. Employers should ensure that they continue to create and maintain gender-neutral policies that are clear and explicitly supportive of gender identity and expression.
Top tips for Employers:
- Look into auditing relevant HR and EDI policies to ensure that the language reflects the legal definition of “sex”.
- Ensure that employees are educated on the clarified legal definitions of “sex” and “gender reassignment” under the Equality Act 2010.
- To avoid promoting harmful discourse surrounding this legal change, consider providing gender-neutral facilities. If possible, allow employees to use restrooms that align with their gender identity.
- Continue investing in inclusive practices, communication, staff training, and a zero-tolerance approach to bullying or harassment.
What Do I Need To Know As An Employee?
For transgender individuals, this ruling may be viewed as a step backwards in the progress made thus far in having their rights and gender identities legally recognised. A question that has arisen for many is the relevance (if any) of Gender Recognition Certificates (GRC) now that they no longer allow transgender individuals to be legally regarded as their acquired gender under the Equality Act.
It is very important to know that claims of discrimination, both direct and indirect, based on gender reassignment will still be pursued. The Equality Act 2010 prohibits discrimination against individuals undergoing, proposing to undergo, or having undergone a process of gender reassignment.
Employees can also bring claims if they experience unwanted conduct related to gender reassignment that violates their dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.
Top Tips For Employees:
- Employees should be mindful of language and behaviours that may unintentionally offend or hurt transgender colleagues. This includes:
- Avoiding “outing” someone who has not publicly shared their gender identity.
- Not making assumptions about someone’s gender based on their appearance.
- Avoiding comments about someone’s transition or physical appearance unless they bring it up.
- For transgender individuals, ensure that you are familiar with your protections under the Equality Act 2010. A key point to note is that you can still challenge an exclusion from a single-sex space or service if there is no justification or rationale for it.
A General Takeaway From This Ruling
Ultimately, the tone for an inclusive work environment is set at the top. Employers need to promote an inclusive and supportive workplace culture and communicate the importance of these values across the entire organisation. Supportive behaviours to adopt include:
- Communicating Clear Support: Publicly acknowledge and re-affirm the company’s commitment to gender inclusivity and emphasise that everyone has the right to be themselves at work.
- Ensuring Legal Compliance: Stay updated on any legal developments related to transgender rights and ensure your policies comply with those laws.
- Creating Safe Reporting Mechanisms: Provide safe and confidential avenues for employees to report harassment or discrimination related to gender identity.
By fostering a workplace culture that is accepting and proactive, both employees and employers can help transgender colleagues feel respected, valued, and comfortable despite the shifting legal landscape.
Contact Us Today
Employment law is constantly evolving, with frequent and significant changes to the law impacting thousands of individuals in the workplace each year. Macks Solicitors advise clients on all aspects of employment law, whether you are an employer, employee or worker. For a free initial assessment of your case call us on 01642 843 667. Alternatively, complete our online contact form and one of our employment solicitors will be in touch.
Written by Olivia Heathcote
