The recent Supreme Court decision in For Women Scotland v The Scottish Ministers is intended to bring clarity to the statutory interpretation of the meaning of “man”, “woman” and “sex” in the Equality Act 2010 (“EA 2010”). Judgment was handed down on 16 April 2025 unanimously allowing the appeal, holding that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex.

This means employers will now be wanting to ensure compliance, and will welcome interim guidance issued by the ECHR. This is interim guidance while the ECHR is in the process of fully updating both their statutory and non-statutory guidance.

Background

Per the press summary, this appeal “arose in response to the definition of the term “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 (“ASP 2018”) and associated statutory guidance. This legislation created gender representation targets to increase the proportion of women on public boards in Scotland”. This guidance was challenged, following which new statutory guidance was issued. It was this new guidance - which stated that a person with a Gender Recognition Certificate (“GRC”) recognising their gender as female is considered a woman for the purposes of the ASP 2018 -  and its lawfulness that was under challenge in this appeal.

The Appellant, who “submitted that the definition of a “woman” under the EA 2010 refers to biological sex, meaning that a trans woman with a GRC (a biological male with a GRC in the female gender) is not considered a woman under the EA 2010, and consequently the ASP 2018” was unsuccessful in appeals to the Outer House in December 2022 and Inner House in November 2023. Both times judgement was found in favour of the Respondent, who submitted “that the definition of a “woman” under the EA 2010 refers to “certificated sex”, meaning that it includes trans women with a GRC”. The Supreme Court however, upheld the appeal.

New Interim Guidance

The result of the judgment is that for the purpose of the EA 2010, people do not change sex even if they hold a GRC. In workplaces, “it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed”.

In workplaces and services that are open to the public:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men.

The ECHR aims to provide the updated Code of Practice to the UK Government by the end of June for ministerial approval. A consultation will be launched in mid-May and last for two weeks. They will be seeking views from affected stakeholders.

We are happy to assist with any other questions you might have. For more information please contact Kim Knox on KKnox@ortolan.com