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Now the dust has settled, and the expected spike of media attention has passed, focus can shift to the practical implications of the UK Supreme Court’s landmark ruling last week. In the case of For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 the Supreme Court ruled that the terms “man”, “woman” and “sex” in the Equality Act 2010 (EA) refer to biological sex only, and do not extend to certified sex. This means that a gender recognition certificate (GRC) does not change an individual’s “sex” under the EA.
The legal challenge came about as a result of a Scottish government initiative imposing gender representation targets to increase the proportion of women on public boards in Scotland. The Scottish government issued statutory guidance which said that for the purposes of the gender representation targets, the definition of a “woman” was the same as the EA. It also stated that a person with a GRC certifying their gender as female was a “woman” for these purposes. ‘For Women Scotland’ challenged the lawfulness of the guidance.
The Supreme Court’s decision
The Supreme Court conducted a detailed examination of the definitions contained in previous legislation as well as the practical implications of interpreting the relevant definitions in a way which included gender reassignment. It found that including certified sex within the definition would create a difference between trans people who hold a GRC and those who don’t and would also cause practical difficulties in certain areas – e.g. pregnancy/maternity provisions and single-sex services.
The Supreme Court therefore unanimously held that “sex” refers solely to biological sex under the EA. This means that a person with a GRC should not be regarded as a woman for the purposes of the EA. To interpret this piece of legislation in any other way would render it ‘incoherent and impracticable to operate’.
The Supreme Court highlighted that this decision did not remove protection from trans people (with or without a GRC) as transgender individuals are protected from discrimination on the ground of gender reassignment, and from direct discrimination/harassment/indirect discrimination on the basis of sex (as there is protection from discrimination if a trans individual is perceived to be a woman).
What is next for employers?
For years, employers have been working hard to create open and welcoming spaces for all of their workers irrespective of their sex and gender reassignment status. The Supreme Court ruling has turned previous interpretations of sex under the EA on their heads and employers now need to review and revise their positions on the subject and do it fast! Government guidance is due to be published in the summer to assist with this but in the modern working world, 3 months is a lot of time for grievances and ET claims to arise. So, more fool the employer that sits on their laurels until that guidance is published!
Instead, I recommend taking the following steps:
- Avoid any knee jerk reactions or communications. We all want to be ‘on it’ and be seen to be actioning these key developments. However, taking action before assessing your company’s current position and creating a clear strategy for moving forward is likely to come back and bite you in the ….
- Consider a company wide update regarding the landmark ruling. Use your intranet or normal communication channels to bring this to the attention of your workforce. This update should simply highlight that the company is aware of the ruling and is currently considering what, if any, amendments need to be made to current policies and practices to accommodate the change in interpretation of the EA. Ask for a degree of patience on this from your staff. This is new to everyone, including the very people that are responsible for creating the policies in your organisation, so it is perfectly acceptable that you’ll need a bit of time to get your head around what needs to happen next.
- Undertake a risk assessment to identify where in your business this is likely to have an impact. Think recruitment, training, staff management and the use of single sex spaces, such as toilets and changing rooms. Identify anyone in your workforce that is likely to be substantially impacted by this decision and consider whether additional support and/or communication might assist them as you embark on this process.
- Quickly review and adjust (if necessary) your policies and practices related to promoting equality and countering discrimination within your business to ensure alignment with the Supreme Court ruling. In particular, these policies and practices must include clear guidance on how employees should act in their roles, single-sex spaces, and company facilities to ensure the rights of men, woman and transgender workers are all equally and fairly accommodated. Please reach out if you need some help with this.
- Once these changes have been agreed, notify managers and train them to understand the changes. Get them on board so that they can demonstrate behaviours in line with the new policies and help get their teams on board quicker.
- Update signage and use notices to reflect these changes where appropriate, such as in changing facilities.
- Communicate the changes to the wider workforce so that everyone knows what they are and what is now expected of them.
- Look at your EDI training. This will likely need updating. Get it updated and start rolling out a refresher to your entire workforce. This will help you to defend any future claims of vicarious liability if any of your staff fail to conduct themselves in the manner prescribed in your new updated policies.
- Police these changes. Investigate issues that arise from this efficiently and fairly. The chances are someone in your workforce will not be happy with the ruling and the consequent changes to your policies and practices. You are legally obligated to act in accordance with the new ruling but that, of course, doesn’t mean that complaints about these changes can be ignored or briefly rebuffed. Tackle such complaints and issues head-on. It will likely save you having to tackle them amidst a stressful and costly Employment Tribunal claim.
- Carefully manage conflicting beliefs by ensuring there are appropriate policies in place and training is provided on how to ensure views are expressed respectfully and appropriately at work. Balancing competing opinions is a very tricky ongoing issue for employers and this ruling is unlikely to quell these conflicts.
- Get support from qualified and experience employment lawyers, preferably those of us that specialise in complex, multi-strand discrimination claims. We’ll support you as you make your way through this minefield.
To discuss any of the issues raised in this article, please contact Lynsey Blyth.
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