Supreme Court ruling on definition of ‘sex’

24 April 2025

A case, brought forward by the advocacy group For Women Scotland, challenged the Scottish government’s guidance that included transgender women with Gender Recognition Certificates in the definition of ‘woman’ for public board appointments.

On 16 April 2025, the Supreme Court provided a landmark ruling on the protected characteristic of sex in the Equality Act 2010. They stated that the legal definition of a woman is based on biological sex and the legal concept of sex is binary.

The Court ruled that the Equality Act clearly separates the legal definitions of sex and gender reassignment, and both must be treated as different protected characteristics. The judges emphasised that transgender people have existing protections against discrimination and harassment written into the Equality Act under the protected characteristic of gender reassignment. Furthermore, getting a Gender Recognition Certificate does not change a person’s sex when it comes to how the Equality Act applies.

While the ruling provides clarity about the legal interpretation of sex under the Equality Act 2010, concerns have been raised by transgender rights groups about potential exclusions from single-sex spaces and services. This in turn highlights the need for sensitivity, respect and inclusion in the workplace with employers being committed to supporting transgender employees while having a zero-tolerance approach to bullying, harassment and discrimination in light of the ruling.

The Equality and Human Rights Commission are currently working on their revised Code of Practice which will provide guidance to employers in relation to this ruling. It will be laid before parliament before the summer recess for consideration.

In the meantime, employers should consider the steps they may need to take:

• Review polices and procedures - the language used in your policies should reflect the legal definition of sex. While it is important to look at all policies, HR, ED&I policies and those related to recruitment, facilities, dress code, parental leave and any single sex provisions should be a focus.
• Staff training - all staff should be aware of the the legal definition of a woman and managers should be trained in how to handle conversations sensitively.
• Promote employee support -  all employees should be aware of the support available to them e.g.  employee counselling and any other support mechanisms the employer has available.
• Communication -  highlight the organisation's ongoing commitment to inclusion and respect for all identities, beliefs and views while confirming the employer's zero- tolerance approach to bullying, harassment and discrimination.