On 16 April 2025, the UK Supreme Court published its judgement in the case of For Women Scotland Ltd v The Scottish Ministers. In this case, the Supreme Court was asked to make a finding on the definition of ‘woman’, ‘sex’, and ‘man’ in the Equality Act 2010.
What does the Equality Act 2010 say?
The Equality Act 2010 (EqA) makes it unlawful to discriminate against someone on the grounds of a protected characteristic. There are nine ‘protected characteristics’ including sex and gender reassignment. The EqA states that a person has the protected characteristic of gender reassignment “if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.”
What was the judgement?
The Supreme Court found that for the purposes of the EqA, the term ‘sex’, ‘woman’ and ‘man’ means biological sex, biological woman and biological man. In relation to the term ‘woman’, that does not include biological males, even if they have a Gender Recognition certificate to say they have changed gender.
What does the judgement mean?
The decision has made headlines with some welcoming the judgement, while others are concerned about the reduction of rights for transgender women. For example, a transgender woman cannot now bring a claim of sex discrimination on the grounds of being a transgender woman and will also be unable to bring a claim under equal pay legislation (which states that men and women in the same employment performing equal work must receive equal pay unless any difference in pay can be justified) on the basis that she is paid less than a (biological) man.
However, transgender women are still able to claim discrimination under the category of ‘gender reassignment’, rather than ‘sex’. Transgender people are also still able to claim sex discrimination if they are perceived to be their acquired gender.
How will the judgement affect employers?
The Judgment balanced sensitive topics of discrimination and gender affecting women and the trans community. Transgender employees still have protection from discrimination under the EqA but may understandably be feeling anxious about the consequences of the judgement. Even though they still have protections under the EqA, for many it may not feel like that and there might be a worry that harassment will increase.
Conversely, other employees may (wrongly) consider that there is now no discrimination protection for transgender colleagues. For the purposes of the EqA, anything done by an employee in the course of employment is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval. So, you could be "vicariously liable" for discrimination or harassment committed by an employee in the course of employment.
Our advice for employers is:
- If you operate single-sex services or spaces, you may need to reassess your policies to ensure these reflect the new position while balancing the protection from discrimination through the protected characteristic of gender reassignment
- Have a clear Equal Opportunities Policy in place setting out what is and what is not acceptable behaviour and be clear that you will not tolerate any form of unlawful discrimination in the workplace
- Be clear that complaints about unlawful discrimination will be taken seriously, even if they are raised less formally
- Provide regular training to managers so that they fully understand how to deal with a situation where an employee may be subject to discrimination of any kind, including on the grounds of gender reassignment, and ensure they know where to ask for help if they need further guidance
- Do not tolerate discriminatory behaviour by staff and make sure it is dealt with through proper disciplinary measures.
If you have any questions or need assistance, please do get in touch with our employment team.
