The Supreme Court delivered a landmark ruling in the case of For Women Scotland Ltd. v Scottish Ministers on Wednesday, 16 April 2025.
This judgement relates to the application “woman” under the little known Gender Representation in Public Boards Act (Scotland), 2018. However, the public debate about the decision is still going on. This decision will be cited in future cases.
This case dealt with the intersection between gender recognition and rights based on sex in the UK. It confirmed that a woman is someone who was born biologically female and not someone who has a certificate recognizing her as female.
The key points of the decision
This decision clarifies that the Equality Act 2010 only protects against discrimination based on sex. It is a biologically based sex. The reasoning behind the decision is that combining the two protected characteristics sex reassignment and sex would lead to absurdities if interpreted in this manner.
The Gender Recognition Act 2004 does not affect or invalidate the ruling. This act allows people to legally change their gender. It does, however, state that this recognition will not change the meaning of “sex”, as defined by the Equality Act.
The Supreme Court, however, was eager to affirm that despite the judgment, this does not undermine or remove the protections provided by the Equality Act 2010, which protects transgender individuals from discrimination based on gender reassignment.
Employers should be aware of the implications
The Supreme Court decision will have many practical implications for employers. They will need to strike a balance between adhering to the law and avoiding any discrimination towards transgender employees.
First, employers will need to carefully review and possibly revise their equality and diversity policy to ensure that they are in line with the Supreme Court’s interpretation of “sex” and “woman” (and, by extension “man”, a person who has a biological male gender). It is important to update language in employee handbooks, policies, and training materials so that they reflect the difference between biological sex, and gender identity.
This ruling affects all recruitment and promotion policies, particularly those aimed at increasing the female representation. In accordance with the Equality Act, employers must ensure that initiatives aimed at supporting women are based upon biological sex. If an employer wants to increase the number of women in senior positions, they may want to change the eligibility criteria of their management training program to reflect the biological sex rather than the acquired gender.
Employers must also review the gender-specific facilities they provide, such as changing rooms and toilets, to make sure that they are in compliance with the Supreme Court’s ruling. It may be necessary to create clear policies regarding the use of these facilities by transgender workers, while still maintaining compliance with antidiscrimination laws.
Practical Steps
In practice, it could mean providing gender-neutral facilities. Employers who lack the resources or space to accommodate this will face additional challenges when trying to balance their obligations towards employees of both sexes without violating the rights transgender employees.
It is important that employers train their HR staff and managers about the impact of this ruling. This training should include the legal definitions for sex, gender and the rights of transgender workers, as well as how to deal with workplace issues in a sensitive and lawful manner.
Employers must also stay abreast of any changes in the law and make sure their practices are compliant with the Gender Recognition Act and Equality Act. It is important to seek legal advice when needed in order navigate situations that involve gender identity or biological sex.
Final Thoughts
The Supreme Court decision in For Women Scotland V Scottish Ministers clarifies the UK legal interpretation of gender and sex.
Employers should take proactive measures to align their policies with the ruling. In doing so, employers should be mindful of the impact this ruling will have on transgender workers and strive to achieve a balance that allows them to remain compliant with the law while also fostering a welcoming, inclusive environment.
