Groundbreaking Supreme Court Definition of Women
In April 2025, the Supreme Court delivered its ground-breaking judgement in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, a case involving statutory interpretation of “man”, “woman” and “sex” in the Equality Act 2010 (“EA 2010”).
Background Facts
The Scottish Ministers issued new statutory guidance in 2022. The new guidance stated that the definition of a “woman” is the same as that in the EA 2010. We keep in mind that Section 212 of the EA 2010 defines “woman” as “a female of any age.” The new statutory guidance also states that a person with a Gender Recognition Certificate (“GRC”) recognising their gender as female is considered a woman for the purposes of the ASP 2018. A GRC is a document that allows trans people to change their gender legally. Essentially, the guidance stated that a trans woman with a full Gender Recognition Certificate (GRC) should be treated as a woman. For Women Scotland Ltd, a feminist organisation, subsequently challenged the statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act).
Judgement
The Supreme Court unanimously allows the appeal and held that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex.
The Supreme Court went on to analyse the definitions of “sex,” “man,” and “woman” in the EA 2010, concluding that these terms refer to biological sex. The Supreme Court found that interpreting “sex” as certificated sex would create incoherent and unworkable provisions, particularly in relation to pregnancy and maternity discrimination, single-sex services, communal accommodation, and sports. One example is that it would weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations.
Whilst the Supreme Court also found that the Scottish Government's guidance that "a trans woman with a gender recognition certificate is legally a woman" is invalid and incorrect, Lord Hodge also emphasized that this decision does not alter the Equality Act 2010’s protections against discrimination based on the protected characteristic of gender reassignment. He also acknowledged that trans individuals are a vulnerable group who face discrimination and prejudice while striving to live with dignity.
Comments
Although there are both supportive and critical voices within the community, the Supreme Court’s decision ultimately provides clarity on the interpretation of sex in anti-discrimination law, helping to ensure that all groups receive appropriate protection under the law.
