Legislation

In April 2025, the UK Supreme Court made a landmark decision in the case of For Women Scotland v The Scottish Ministers. In this case, the Supreme Court ruled that in the Equality Act 2010 (the Equality Act), ‘sex’ means a person’s biological sex. Therefore, a ‘woman’ is a biological female (i.e. a person born female) and a ‘man’ is a biological male (i.e. a person born male). Where a person identifies as trans, their sex does not change for the purposes of the Equality Act. This applies even where a person has a Gender Recognition Certificate (GRC). This means that under the Equality Act, a trans woman is a biological male, and a trans man is a biological female.

What the Ruling Means for Employers

This ruling will undoubtedly have huge implications for employers. The Equality and Human Rights Commission (EHRC) are the statutory body appointed by parliament to be the equality and human rights regulator and their main role is to enforce the Equality Act, which prohibits discrimination and harassment. They are working on updating their statutory and non-statutory guidance, but in the meantime, they have published an interim statement which highlights the main consequences until they are able to provide further clarity.

Single-Sex Facilities in the Workplace

The EHRC have given specific guidance for employers and have confirmed that in workplaces, it is compulsory to provide single-sex toilets, as well as sufficient single-sex changing and washing facilities (where needed). Trans women (considered biological men) should not use the women’s facilities and trans men (considered biological women) should not use the men’s facilities. This is because to do so would mean that they are no longer considered single-sex facilities.

Different Rules for Public Services

It is not compulsory for services that are open to the public to provide facilities on a single-sex basis in the same way. They can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Equality Act. However, if services only provided mixed-sex facilities, it could be indirect discrimination against women or men. The EHRC have made a clear distinction between the approach for workplaces and for services.

Summary of EHRC Interim Guidance

The EHRC have made further comments in respect of both workplaces and services to provide some interim clarity, and have summarised as follows:

• Trans women (biological men) should not use women’s facilities and trans men (biological women) should not use men’s facilities
• In some circumstances, the law also allows trans women (biological men) not to be allowed to use the men’s facilities, and trans men (biological women) not to be allowed to use the women’s facilities. However, where facilities are available to both men and women, trans people should not be in a position where there are no facilities for them to use.
• Where possible, mixed-sex toilet, washing and changing facilities should be provided, in addition to single-sex facilities.
• Where facilities are in lockable rooms (i.e. not a cubicle) which are intended for the use of one person at a time, they can be used by wither women or men.

Potential Ambiguities Highlighted by EHRC

Separately, the EHRC have outlined that there will be three main areas where the implications of the interpretation of the ruling will be more ambiguous or potentially disadvantageous, as follows:

1. Equal pay provisions – at present, a trans woman with a GRC can bring an equal pay claim by citing a legally male comparator who is paid more. A trans man with a GRC cannot. A biological definition would reverse this situation, transferring the right from some trans women to some trans men
2. Direct sex discrimination – at present, a trans woman with a GRC can bring a claim of direct sex discrimination as a woman, whereas a trans man with a GRC cannot. A biological definition of sex would reverse this.
3. Indirect sex discrimination – at present a trans woman with a GRC can bring a claim of indirect sex discrimination as a woman, whereas a trans man cannot. A biological definition would reverse this.

Next Steps: Further Guidance and Consultation

The EHRC’s full guidance is expected to be with the UK Government by the end of June, for their final approval. They will also be carrying out a public consultation in May for two weeks to understand the practical needs created by this judgment. However, they are clear that the legal position has been decided by the Supreme Court, so they will not be consulting on those legal aspects.

What Employers Should Do Now

In the meantime, employers should continue comply with the Equality Act and the EHRC will continue to regulate and enforce it. The important thing to remember is that this ruling is not intended to take away protection for transgender people in any way. Instead, it provides clarity aimed at supporting fairness, legal consistency and better policy implication across the workplace.