The Supreme Court’s decision on how to legally define a woman under equality law is having a wide impact on policies and guidance across the UK.
After the decision, which ruled that the definition of “woman” should be defined by biological sex only, there was confusion among charities and public bodies about how this would impact current policies on gender inclusion.
Ferret Fact Service takes a look at what the ruling does and does not say, and what its impact could be.
How did we get here?
The Supreme Court’s ruling came as a result of several legal challenges, which began after the Scottish Parliament passed a bill in 2018 to tackle underrepresentation of women on the boards of public bodies.
The definition of “women” in the law included people who were living as a woman after gender reassignment, or were proposing to undergo the gender reassignment process.
This was challenged by For Women Scotland, a ‘gender critical’ campaigning organisation which opposes changes to gender recognition law.
This Scottish Government act was found to be unlawful in 2020 as it was legislating on equal opportunities, which is an area of law reserved to the UK Parliament.
A lot of legislation that becomes law in the Scottish and UK parliaments is underpinned by previous regulations. In this case the relevant legislation was the Equality Act, which came into force in 2010 and is enshrined in law across the UK.
After it was deemed unlawful, the Scottish Government released new guidance relating to its public bodies representation law, stating that the definition of a “woman” in the act was the same as it is in the Equality Act, which defines a woman as “a female of any age”.
This included, according to the Scottish Government’s guidance, anyone with a gender recognition certificate (GRC) which showed their gender as female. A GRC is a document that a transgender person can apply for, which means they are legally recognised as their affirmed gender.
This guidance was again challenged by For Women Scotland in 2022. The group argued that the definition of a woman in the Equality Act refers to biological sex, meaning that a trans woman with a gender recognition certificate would not be considered a woman for the purposes of the law. This argument was rejected in Scotland’s court of session but For Women Scotland appealed to the Supreme Court, the final and highest appeal court in the UK for civil cases.
The Supreme Court was asked to rule on how the Equality Act definition of a woman should be interpreted, and announced its decision in April this year.
What did the Supreme Court find?
The court upheld the appeal, finding that the definition of “woman”, “man” and “sex” in the Equality Act refer to biological sex (this refers to the sex someone is assigned at birth). It stated that including those with a gender recognition certificate would make the Equality Act “incoherent and impracticable to operate”.
The Scottish Government’s guidance that a trans woman could be included under the definition of “woman” in the Equality Act was found to be incorrect.
In the judgment, Lord Hodge, Lady Rose and Lady Simler stated: “It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the Equality Act 2010”.
The finding, they said, does not remove protection from trans people, with or without a GRC. A trans woman can be victimised under the law on the grounds of gender reassignment, and when she faces discrimination because she is “perceived as a woman and can compare her treatment with that of a person not perceived to be a woman”.
What did the equality commission say?
The Supreme Court’s interpretation of the law led to a significant knock-on effect, with public bodies, charities and other public-facing sectors like the hospitality and events industry questioning what the impact of the ruling would be on spaces such as toilets and changing facilities.
The Equality and Human Rights Commission (EHRC), which is the UK’s human rights regulator, released a document called “An interim update on the practical implications of the UK Supreme Court judgment”.
In it, the body attempts to set out how the finding might impact current guidelines and procedures.
It states that the judgment has implications for workplaces, services that are open to the public (such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services), sporting bodies, schools, and associations (groups or clubs of more than 25 people which have rules of membership).
In workplaces, the EHRC states that trans women should not be allowed to use women’s bathrooms, and trans men should not use men’s bathrooms.
This was also the case for schools. It said: “Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities”.
It is not “compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets, “ according to the EHRC. But it goes on to state that services offering only mixed-sex facilities could fall foul of the law through the Equality Act’s section on “indirect sex discrimination”. This is when a blanket approach that applies to everyone has an effect which particularly disadvantages people from a protected group.
This update does not amount to formal guidance. Instead it is described as highlighting “the main consequences of the judgment”.
The EHRC’s guidance is not strictly legally-binding, but it can investigate organisations that it suspects have broken equality law.
What do charities and businesses need to do now?
There remains significant confusion among business, and third-sector organisations on how this judgment could be practically applied.
The judgment does not require charities and businesses to change their approaches immediately, however it may be that once the EHRC’s new guidance relating to the Equality Act is completed, organisations have to alter provisions for single-sex spaces and facilities. While EHRC’s codes of practice are not legally-binding, they can be used to support legal cases.
The judgment was specifically focussed on the definition of ‘sex’, ‘man’ and ‘woman’ in the Equality Act 2010. Rules around public facilities and bathrooms in businesses and those in other non-governmental services are underpinned by various other pieces of legislation, which could see a knock-on effect from this ruling, but are as yet unchanged.
What is happening now?
The EHRC is currently consulting on changes to its official code of practice around the Equality Act in the wake of the Supreme Court’s judgment, which will take place until the end of June 2025. The regulator has committed to presenting an updated code of practice to the government by the end of June for ministerial approval. This will aim to provide clarity over the implementation of the Equality Act post-judgment.
The UK’s first judge to publicly say they are transgender has announced that she will attempt to take the UK Government to the European Court of Human Rights over the ruling, which she said violated her human rights.
Legal campaigners the Good Law Project have announced they will pursue a legal challenge in the High Court to the EHRC’s interim update and equalities minister Bridget Phillipson. They argue that interim guidance, which requires toilet use based on “biological sex”, would breach the UK’s obligations under the Human Rights Act 1998 if it was enforced.
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