For Women Scotland Ltd[1] – Why this Case Made Headlines and its Significance
In April 2025, the UK Supreme Court issued its judgment in an appeal brought by For Women Scotland Ltd against a decision of the court below. On its face, the case was concerned with gender representation on public boards and how a “woman”, “man” and “sex” are defined. The decision focused on the interaction of provisions under the UK Equality Act 2010 (“EqA”) and the UK Gender Recognition Act 2004 (the “GRA”). Under the GRA, a person’s sex will for legal purposes become that of their acquired gender if they obtain a full gender recognition certificate (“Certificate”). The Supreme Court had to decide whether this meant that the EqA was to be interpreted consistently with the GRA – i.e. was the protected characteristic of “sex” defined to mean biological sex only, or could it include acquired sex where someone had obtained a Certificate?
In their much-discussed landmark decision, the Supreme Court held that the test was biological sex with the result that only a person born of the female gender could be a “woman” and only a person born of the male gender could be a “man” for the purposes of equality legislation.
The decision was based on arguments of coherence (logically, some rights and derogations only made sense if applied to biological females or biological males) and practicality, it being the view of the Supreme Court that rights should not depend on whether an individual had taken the “official” step of obtaining a (confidential) Certificate. It was also emphasised that the term “woman”, where used in the EqA, should have a “single, consistent, stable and predictable meaning”, which the Supreme Court considered would only be achieved by a biological definition of sex.
Whilst this was always going to be an emotive case and there have been criticisms that the outcome represents a row-back on progress towards inclusivity, it should be noted that protections are still conferred by equality legislation for trans women and trans men on the basis of gender reassignment.
The impact of the For Women Scotland Ltd judgment has wide-reaching implications beyond the direct context in which the case came to court. It potentially affects service providers, organisations and employers in areas including:
- separate or single sex provision (e.g. changing and washroom facilities) as regards what has to be provided and who can use them;
- fair and safe participation in sport;
- positive action to address under-representation;
- the application of genuine occupational requirements at work where sex is relevant (for example, in the area of personal care or in recruiting changing room staff); and
- membership and who may be admitted to associations or groups that exist to provide services etc to those of a specified sex – e.g. a women’s group, an association to support gay men and so on.
Since the UK Supreme Court decision, the Equality and Human Rights Commission has consulted on producing a revised Code of Practice which is intended to provide formal guidance to service providers, public bodies and associations in the UK on their duties under the EqA. This is likely to be of some assistance to Isle of Man employers due to similarities in how the Isle of Man Equality Act 2017 is drafted and the alignment of principles and rights as compared with the EqA.
Whilst the definition of sex based on biology clarifies certain aspects of duties and rights under equality legislation, there are still a number of practical issues that need to be worked through on which employers may find it helpful to seek legal guidance. As ever, it is not just the technical requirements but the workplace culture which requires consideration in terms of implementing any changes or adaptations as a result of the For Women Scotland Ltd case. Additionally, employers need to emphasise respect for all protected characteristics and prohibit discrimination and harassment against all relevant groups.
Careful thought and sensitivity are required in terms of balancing competing interests and beliefs within a diverse workforce. The situation has only become more complex and nuanced since the Supreme Court’s ruling in For Women Scotland Ltd and other cases of significance such as Higgs v Farmor’s School[2] (involving expression of gender-critical and/or protected religious beliefs).
Cains’ employment team is on hand to provide advice on the issues discussed in this note and/or to assist with updating policies and procedures in line with these latest case law developments. Contact us to discuss further.
[1] [2025] UKSC 16
[2] [2025] EWCA Civ 109
