The Supreme Court’s ruling in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 provides certainty at last in relation to the issue of whether the definition of ‘woman’ and ‘man’ in the Equality Act 2010 (‘EqA’) refers to the widely used term ‘biological sex’ (the sex of a person at birth) or ‘certificated sex’ (the sex attained by the acquisition of a GRC (Gender Recognition Certificate) under the terms of the Gender Recognition Act 2004 (‘GRA’).
The Supreme Court held that in relation to the protected characteristic of “sex”, the terms “sex”, “man”, “woman”, and “male” and “female” used in the EqA relate to biological sex, not certificated sex.
The appeal was brought against the decision of the Court of Sessions, which had determined that the impact of “sections 9(1), (2) and (3) of the GRA 2004 read together meant that a person with a GRC “acquires the opposite gender for all purposes unless there is a specific exception in the GRA [2004]; or unless the terms and context of a subsequent enactment require a different interpretation to follow”
The SC examined the terms of section 9 GRA and looked back at the underlying aims behind the EqA and its predecessor legislation relating to sex: the Sex Discrimination Act 1975 (‘SDA’). Under the SDA, the SC found, that “there can be no doubt that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex – the trans community of course existed at the time but their recognition and protection did not”
The impact and interpretation of the Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102) (‘the 1999 Regulations’) was also considered.
The SC recognised also that protected against discrimination on the grounds of gender reassignment is also provided for as a protected characteristic under the EqA, which provides specific protection for transgender persons irrespective of whether they are certificated in their sex or not.
The SC further recognised that some provisions within the EqA makes reference to women in a manner that is quite clearly only applicable to biological women e.g. in relation to childbirth and maternity.
The decision was therefore that as a matter of statutory interpretation, the terms of the EqA refer to biological sex, not certificated sex.
This will clearly not be an end to the debate, as although the meaning of ‘sex’ etc has been adjudicated upon within the legal field, the meaning of ‘gender’ is still open for debate and discussion in a wider context.
It was noted by the SC that transgender persons are able to bring claims of sex discrimination on the basis of perceived sex (i.e. if a certificated man, claiming they were discriminated against because they were perceived to be a man) or on the basis that they have undergone/are undergoing/are proposing to undergo the gender reassignment process (s.7(1) EqA).
However in the writer’s view, this leaves the quite significant gap for some transgender people. These are individuals who do not fall into the category of gender reassignment (because, e.g. they do not intend to undertake the formal reassignment process), and who also do not perhaps yet ‘pass’ as their transgender sex. It would be open to someone who was discriminating against (e.g.) a transgender woman in such a position to argue that they were not discriminating against her as a woman, because she was not ‘passing’ and was therefore not being perceived as a woman (so no claim under protected characteristic of sex/woman); and yet because she was not proposing to undergo the gender reassignment process, she would not have a claim under that protected characteristic either.
It may be that further legislation and amendment to the EqA would be needed to cover this point, as a new protected characteristic.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of chambers.
