In For Women Scotland v The Scottish Ministers [2025] UKSC 16 this week, the court was asked to clarify the effect of the Gender Recognition Act 2004 on the interpretation of the terms ‘sex’, ‘man’, ‘woman, ‘male’ and ‘female’ in the Equality Act. The central question posed was whether the Equality Act ‘treats a trans woman with a GRC [gender recognition certificate] as a woman for all purposes within the scope of its provisions, or when that Act speaks of a "woman" and "sex" it is referring to a biological woman and biological sex’.
In a lengthy lead judgment, Lord Hodge and Ladies Rose and Simler said: ‘It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word "woman" other than when it is used in the provisions of the EA 2010.’
They concluded that a biological definition of ‘sex’, referring to the sex identified at birth, ‘would not have the effect of disadvantaging or removing important protection under the EA 2010 from trans people (whether with or without a GRC)’.
The Justices emphasised that the EA 2010, which covers the protected characteristic of ‘gender reassignment’, will continue to protect trans people from discrimination and harassment. They also counselled ‘against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not’.
Employment lawyer, Polly O’Malley, partner at Browne Jacobson, suggested senior leaders pause and take stock before reacting to the ruling.
‘Whenever a Supreme Court judgment signals a new interpretation of the law, it doesn’t necessarily follow that policies and processes used by organisations are automatically now incorrectly applied—indeed, many will remain just as important and any knee-jerk reaction could cause more harm than good.
‘Given the Supreme Court has upheld the protection of transgender individuals from discrimination on the basis of gender reassignment, employers should tread carefully and ensure they continue to promote a culture of openness and respect between employees, underpinned by internal training that helps to eliminate hidden bias.
‘For any business or publicly-facing organisation guidance should be reviewed and potentially updated to reaffirm the importance of when and how it is appropriate for personal opinions to be expressed within the workplace or environment in which activities take place.’
Employment lawyer Hina Belitz, partner at Excello Law, said the ruling ‘will inevitably lead to some thorny issues, for instance, a biological woman who transitions to male and receives a gender recognition certificate for doing so—if this person were to become pregnant, how will the law treat parental leave as maternity and paternity leave are differentiated in the law?’ However, she added that ‘it’s more likely that much of the rights in the Equality Act 2010 such as sexual harassment will be unaffected as both sexes can be affected’.
