Case Update: Supreme Court Ruling in For Women Scotland Ltd v The Scottish Ministers – What Schools and MATs Need to Know

The UK Supreme Court (“the UKSC”) in the case of For Women Scotland Ltd v The Scottish Ministers has ruled that the meaning of “sex” under the Equality Act 2010 relates to biological sex. The decision cannot be ignored as there are wide ranging consequences for schools, both in their capacity as employers as well as educational institutions responsible for serving the best interests of the children under their care, and safeguarding and promoting the welfare of children and young people.

Our Education team consider the judgment and the potential implications for schools.

Key legal framework: The Equality Act 2010 and The Gender Recognition Act 2004

The Equality Act 2010 (“the EA 2010”) makes it unlawful to discriminate against someone because of a protected characteristic. It applies to the workplace, to the provision of services and in wider society. Before the EA 2010 came into force there were several pieces of anti-discrimination legislation, including the Sex Discrimination Act 1975 (“the SDA 1975”), the Race Relations Act 1976 (“the RRA 1976”), the Disability Discrimination Act 1995 (“the DDA 1995”) and the Sex Discrimination (Gender Reassignment) Regulations 1999 (“the SDGRR 1999”). The EA 2010 consolidated, updated and supplemented the numerous prior Acts.

Under the EA 2010 it is unlawful discriminate against someone because of:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation.

The protected characteristic of sex makes it unlawful to discriminate against someone because they are a woman or a man. Under the general interpretation provisions of the EA 2010 “woman” is defined as a “female of any age”, and “man” is defined as a “male of any age”. However, it is not stated whether “sex” means biological sex or legal sex, the latter of which would mean that a transgender person with a Gender Recognition Certificate (“GRC”) could be protected from sex discrimination on the basis of their acquired sex, because the GRC allows trans individuals to change the sex on their birth certificate to reflect their lived gender identity.

The protected characteristic of gender reassignment applies to transgender people and the EA 2010 prohibits discrimination because of gender reassignment. A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) of reassigning their sex by changing physiological or other attributes of sex. People with a GRC will have this protected characteristic, however a GRC is not a specific requirement.

The EA 2010 contains provisions permitting discrimination because of sex in certain prescribed circumstances. For example, someone selecting a sportsperson to represent a country in a competition may lawfully exclude a trans person where it is necessary to ensure fairness and the safety of other competitors. This also applies to single-sex service providers and facilities (such as domestic violence refuges or single-sex toilets and changing rooms), only if a joint service would be less effective and providing that separate service is a proportionate means of achieving a legitimate aim.

The Gender Recognition Act 2004 (“the GRA 2004”) allows adults, i.e. those over 18 years of age, to apply for a GRC, which provides legal recognition of their acquired gender. However, legal recognition can be limited – for example a GRC holder may lawfully be treated according to their sex registered at birth for matters relating to succession, parental status regarding children and certain gender-specific offences.

Case Overview and Procedural Background

By way of background, in 2018 the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018 (“the Act”). The Act set out an objective that 50% of a public board’s non-executive members should be women. The definition of “woman” under the Act included someone with the protected characteristic of gender reassignment “if, and only if” that person was living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) to become a female. For Women Scotland Ltd, a feminist voluntary organisation that campaigns to strengthen women’s rights in Scotland sought to challenge this, initially by way of a judicial review in 2020, on the basis that it related to a reserved matter (and as such was not for the Scottish Parliament to decide) and incorrectly combined the protected characteristics of sex and gender reassignment, which they said the EA 2010 intended to keep separate. Under the Scottish Government’s statutory guidance, a GRC did change a person’s sex for the purpose of the EA 2010.

The procedural background up until the matter came before the UKSC is as follows:

• 23 March 2021 – The Lord Ordinary denied the petition by For Women Scotland Ltd and the organisation reclaimed against the decision. Written submissions were provided to the Outer House.
• 18 February 2022 – The Inner House of the Court of Session (Second Division) held that a transgender woman is not a category for these purposes and as such the Scottish Parliament’s definition of “woman” imposed on the nature of protected characteristics, which was a reserved matter. The motion succeeded.
• The Scottish Parliament amended the statutory guidance to say that the definition of “woman” was the same as under the EA 2010. The guidance also stated a person with a GRC recognising their gender as female was considered a woman for the purpose of the guidance.
• For Women Scotland Ltd appealed the Outer House, claiming the definition of a “woman” under the EA 2010 refers to biological sex (and thus a trans woman with a GRC was not considered a woman under the EA 2010 and consequently could not be considered a woman under the guidance).
• 13 December 2022 – The Outer House dismissed the appeal. For Women Scotland Ltd appealed this decision.
• 1 November 2023 – The Inner House of the Court of Session (Second Division) found that a person with a GRC has “the protected characteristic of sex according to the terms of their GRC”, in addition to the protected characteristic of gender reassignment. Therefore, the Outer House’s decision was upheld and For Women Scotland Ltd’s appeal dismissed. For Women Scotland Ltd appealed this decision to the UKSC, the highest court in the UK.

When the matter reached the UKSC, the court were faced with deciding whether Parliament’s meaning of the words in the EA 2010 to protect women and members of the trans community against discrimination had a “coherent and predictable meaning” within the EA 2010 and “consistently with the GRA 2004”. More specifically, whether the use of the terms “sex”; “man”; “woman”; “male” and “female” in the EA 2010 are to be interpreted, in light of the GRA 2004, as including persons who have acquired gender through the possession of a GRC.

The UKSC’s Decision

The UKSC unanimously allowed the appeal.

With regard to the definition of “man” and “woman”, the court held that the SDA 1975 definitions referred to biological sex. While the SDGRR 1999 amended the SDA 1975 to include a prohibition on gender reassignment discrimination, the definitions of “man” and “woman” were not amended. As such, the court took the view that when the EA 2010 was introduced (replacing both aforementioned Acts) there was no indication that these definitions had been amended, and therefore the SDA 1975 definitions still applied.

Further, the court noted that the GRA 2004 allows for the disapplication of the rule that trans people with a GRC are to be considered their acquired gender “for all purposes”. The GRA 2004 says that this could be disapplied by “any other enactment or any subordinate legislation”. The EA 2010 does not expressly address the effect of this exception, therefore the court considered that a careful analysis must be undertaken of the provisions of the EA 2010 to see if a biological meaning of sex was intended and/or whether a certificated sex definition (i.e. sex attained by the acquisition of a GRC) would render a provision incoherent or absurd. To this end, the court considered some provisions of the EA 2010. For example, sections 13(6), 17 and 18 EA 2010 relate to pregnancy and maternity and are based on the fact of pregnancy and giving birth to a child. According to the court, as a matter of biology only biological women can become pregnant, therefore these provisions become unworkable unless “man” and “woman” have a biological meaning. The court further explained that should the certificated sex definition be used, then a biological woman living as a trans man (with a GRC) would be excluded from the protection of these provisions under the EA 2010, notwithstanding their ability to become pregnant.

A further example provided was that of separate spaces and single sex services (such as changing rooms and hostels), where the court deemed a biological interpretation was required to function coherently.

The court emphasised that it is important the EA 2010 is interpreted in a clear and consistent way, and that having a certificated sex interpretation would essentially create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans people who possess a GRC greater rights than those trans people who do not.

In summary, the court concluded that for the purposes of the EA 2010:

• A “woman” is a biological woman or girl (a person born female)
• A “man” is a biological man or boy (a person born male)
• A trans person does not change biological sex, even if they have a GRC. Therefore:
  • A trans woman (a person born male who identifies as a woman) is a biological man
  • A trans man (a person born female who identifies as a man) is a biological woman

Considerations for Schools and MATs following the UKSC’s decision

While the court emphasised that it was not for the court to decide the meaning of “woman” other than when it is used in the EA 2010 provisions, society will feel the effect of this judgment in varying degrees.

Various spaces in society are able to exclude the majority of people with the exception of women, due to exceptions under the EA 2010. As such, this will be allowed to continue in light of the court’s decision. The decision also means that same-sex spaces (such as changing rooms, toilets and hostels) will require the biological interpretation of “sex”, and as such those whose gender identity does not correlate with their biological sex should not have access to such spaces. If they were to continue to have such access, that would be unlawful and the space could no longer be considered a woman only space.

Employers and service providers will need to review their gender policies to ensure compliance with this decision. Some previous legal cases are also likely to be reviewed, such as that of an NHS nurse who was suspended after she refused to share a changing room with a transgender doctor. Current NHS guidance allows trans men and women to use the changing rooms that align with their gender identity, but that will need to change following this decision, along with other NHS policies such as allowing trans people on single sex wards.

Spokespeople for the transgender community are disappointed with the decision. While the court did note the decision did not remove protection from trans people (noting they were protected from discrimination on the gender reassignment ground, and could invoke the provisions on direct discrimination and harassment, and indirect discrimination because of sex), some groups oppose the decision, arguing that it dilutes the protections afforded to the trans community and that the reliance on a biological definition did not include women born without (or with non-functioning) reproductive organs.

In light of the above, it is lawful for certain spaces to be reserved only for certain sexes (such as bathrooms or changing rooms). Difficulties may arise for staff and students who identify as a different gender, who, however, are prevented from using the sex-specific facilities that align with their identified gender for the purposes of the EA 2010. As a consequence of the judgment, an increase in the provision of gender neutral/unisex facilities in workplaces and public services is expected, to ensure that trans people, as well as those who are non-binary, have access to the same facilities. Many schools already have this in place.

There is currently a lack of clear and comprehensive school specific guidance on this topic. The two most recent publications are the Equality and Human Rights Commission (“the EHRC”) Technical guidance for schools in England (September 2023), and the DfE’s draft non-statutory guidance on gender-questioning children (December 2023) which was broadly in line with the UKSC’s decision in that it set out that schools’ legal duties regarding sex should be framed around biological sex.

However, neither the guidance nor the judgment properly deal with the complex legal issues and challenges faced by schools on an almost daily basis. It is the case that schools are often having to balance a number of legal (and sometimes competing) obligations including in relation to safeguarding, data protection, regulatory and equality duties for pupils and staff with different protected characteristics.

It must also be remembered in the case of school age students that are unable to access services to enable them to undergo a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex, they will adopt names in their chosen gender and make changes to their outside physical appearance to that of their chosen gender such that they fall to be protected under the EA 2010 under the protected characteristic of transgender.

From a practical perspective, this decision may fuel uninformed discussions amongst students about what constitutes a “man” or a “woman” despite the court’s emphasis that this decision was not to define a “man” or “woman” in general but to be constricted to the strict interpretation of the EA 2010 only. Schools should be alive to these discussions and correct any misinformation.

Schools will also need to be mindful of this limited application when dealing with the inevitable concerns and views expressed by parents.

Next steps for Schools and MATs to take

The court’s decision has provided some much-needed clarity in this area of law, although it is acknowledged that it is a decision that does not suit everyone and which may cause divisions or tensions within the school community.

The EHRC has issued An interim update on the practical implications of the UK Supreme Court judgment (25 April 2025) and says that it is working at pace on an updated Code of Practice although this is unlikely to be ready before June. The interim update provides that:

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

Schools

• must provide separate single-sex toilets for boys and girls over the age of 8. It is also compulsory for them to provide single-sex changing facilities for boys and girls over the age of 11.
• Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required.

Unions and sector experts have called for additional school specific guidance from the government and the DfE. On 25 April 2025 Schools Week reported that the DfE had committed to providing updated trans guidance this year following the UKSC ruling. It is also possible that further guidance is provided as part of the annual update to the Keeping Children Safe in Education statutory guidance, to take effect from 1 September 2025, at which point the EHRC Code of Practice will hopefully have been substantively updated too.

In the meantime, what is clear is that as a minimum a review of policies on things such as changing rooms, toilets, single sex services, occupational requirements, use of data, equality monitoring and gender pay gap reporting will need to be undertaken as an immediate next step in the light of this decision. Schools therefore need to be managing the situation proactively.

Some areas schools should be thinking about include but are not limited to:

• Policies and procedures: review policies, whether written, implemented by custom and practice or agreed on a case-by-case basis with individual employees (and where relevant pupils) on who can access single sex facilities and services, and amend these accordingly to comply with the decision in this case. Further, a review of policies on pregnancy and maternity, family rights and gender identity will also likely be necessary. It is understandable that trans people may be disappointed about not having access to single sex facilities where they may have been permitted to access them previously. However, the change is required to comply with the law and the interim EHRC advice, and to ensure that women are not discriminated against in respect of being given access to same-sex facilities. It is acknowledged however that any such action may have the effect of discriminating against trans people. It is important that any change is communicated sensitively and that positive messaging about inclusivity is maintained. It will likely be unsatisfactory to expect, for example, a trans woman to use the male toilets or changing rooms as this may create a hostile, intimidating or degrading environment for them. Similarly, a trans man using women only facilities (which would be permitted based on the biological interpretation of sex) could create issues such as women feeling uncomfortable and objecting to a trans man using women-only facilities.
• Public sector equality duty: what complicates matters even further for schools and MATs is that unlike private sector employers, they are subject to the public sector equality duty. The duty is a statutory duty on listed public authorities and other bodies carrying out public functions. It ensures that those organisations consider how their functions will affect people with different protected characteristics. These functions include their policies, programmes, and services. The duty supports good decision-making by helping decision-makers understand how their activities affect different people. The general duty requires decision-makers to have due regard to the need to eliminate conduct prohibited by the EA 2010, advance equality of opportunity, and foster good relations in relation to activities such as recommending new or revised public policy to a minister, publishing a consultation document and designing and providing a public service. This can prove challenging for schools particularly when faced with competing rights and interests.
• Standard template documents, equality and diversity data and training: review standard documents such as application forms and equality and diversity monitoring forms particularly in relation to how they deal with sex and gender identity. Consider how you collect and monitor data obtained through such monitoring forms. The UKSC noted that organisations and bodies that are subject to the public sector equality duty are required to collect data in order to fulfil that duty, and warned against categorising people and collecting data based on asserted or certified gender identity (that is, having a GRC) instead of sex, saying that a heterogenous group containing biological women, some biological males (trans women) and excluding some biological females (trans men) is a confusing group to envisage and “may have little in common”. It remains the case that equality and diversity monitoring forms are voluntary and no individual should be forced to complete them, or indeed to share that they are trans. Schools should also review their training materials and/or check with their training provider whether materials will be updated in the light of this decision, so that the training received by staff is up to date in relation to the definition of sex under the EA 2010, and the rights of women and trans people.
• Gender pay gap reporting: the regulations relating to gender pay gap reporting were made under the EA 2010. As such “male” and “female” should be given a biological interpretation, in accordance with the decision of the court. However the statutory guidance for employers on pay gap reporting states that “It is important… to be sensitive to how an employee identifies their gender. The gender pay gap regulations do not define the terms ‘men’ and ‘women’…You should not single out employees and question them about their gender. To reduce the risk of this, try to use information employees have already provided, such as in HR or payroll records. If this information is unavailable or unreliable, find a way to allow employees to confirm or update their gender. For example, invite them to check their recorded gender and update it if needed. If an employee does not self-identify as either gender, you can exclude them from your calculations.” As such at least for the time being and subject to further direction and amended statutory guidance, it is expected that employers will continue to compile data for the purposes of gender pay gap reporting in the same way as before, particularly given the legal risks associated with requiring someone to share whether they are trans or have a GRC.
• Pregnancy and maternity: trans men (with or without a GRC) who become pregnant will be protected under the provisions of the EA 2010 relating to pregnancy and maternity, and will have all the same pregnancy and maternity rights as others. Policies relating to pregnancy and maternity rights should be reviewed accordingly.
• Employer’s duty of care: from an employer’s duty of care and inclusivity perspective, schools should consider implementing an effective communications strategy and reaching out to any staff affected, whether directly or indirectly, by the issues in this case including those who are transgender and those staff who hold gender critical beliefs (which is also protected under the EA 2010), to reinforce positive messaging around inclusivity and avoid internal conflict. It is important for all to be reminded that transgender people remain protected under the EA 2010. Trans staff in particular may feel vulnerable or excluded, so it is important that support is offered and that staff are signposted to your Employee Assistance Programme or any other initiative intended to support staff in the workplace.
• Managing potential conflict and differing rights and beliefs: staff, pupils and other members of the school community may discuss the case or express certain opinions. Children may naturally ask questions. It is important that opinions are expressed in a respectful way and that any misinformation is corrected. Inappropriate discussions should be addressed under your usual policies and procedures although this must be handled very carefully since someone holding a particular belief will likely be protected under the EA 2010. To the credit of schools, balancing competing rights and interests is not new to them and they are usually able to arrive at a sensible and pragmatic solution in most cases.
• Managing legal risks and claims: Governors and trustees should understand the decision in this case as they are ultimately responsible for ensuring that a school or MAT is complying with its legal obligations. People managers, HR teams and senior leadership should be prepared to manage the potential impact on employee relations and workplace culture, particularly if changes are to be implemented. It is critical that adequate legal support and back up is available to all those people responsible for dealing with the impact of the decision in this case, including any challenge. Your people will need expert advisers to give them the confidence to navigate through any change, and to manage what are very complex and nuanced issues.

As can be seen from the above, notwithstanding that the court has clarified the definition of “man”, “woman” and “sex” for the purposes of EA 2010, many questions remain unanswered and other legal risk have arisen. Any nuances arising out of the judgment will likely need to be resolved through litigation or specific guidance. Schools are advised to avoid making kneejerk decisions and to take expert legal advice when navigating the issues arising from the decision in this case including in relation to changes to existing policies and procedures.

It is unlikely to be adequate for schools and MATs to simply do nothing, at least insofar as staff are concerned. Schools and MATs should be extremely cautious of advice which suggests taking no steps or that the judgment has no implications on them, as this will likely put schools in breach of the law, or at the very least increase the legal risks to them including the risk of claims.

For advice on any of the issues discussed in this case update, or any other employment or HR related matter relating to schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690. For any parent issues, pupil support or safeguarding queries, please contact our dedicated School Support Service helpdesk on Schoolsupport@wslaw.co.uk or 0345 070 7437.

This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors. It is intended only to summarise the decision of the court and highlight potential areas of conflict. The issues arising from this case are complex and multi-facetted. Schools should take advice on their individual circumstances before making any decisions or implementing any change arising out of the judgment in this case.