Landmark case – Legal definition of Woman

Consequently, a transgender woman, for the purposes of the EqA is to be treated as a man, and a transgender man as a woman.  This is the case even where the transgender individual holds a Gender Recognition Certificate (“GRC”), the purpose and effect of which was to confirm that the individual’s gender, for legal purposes, is the one they identify as, rather than their birth/biological gender.

This ruling is likely to have a significant impact on the Education sector, particularly concerning facilities and inclusivity policies.

While the case was not about an employment related issue and the SC therefore did not focus on the implications for the Education sector, the Equality and Human Rights Commission (“EHRC”) have issued interim guidance on the effect of the ruling, and that guidance is helpful in establishing what this will mean for educational institutions.  The EHRC have now also launched a consultation on updating the statutory Code of Practice on Services, Public Functions and Associations which is due to close soon on 30 June 2025.

So what was the case about?

The case first appeared in the Outer House of the Court of Session following a Scottish Government initiative to improve female representation on public boards.  They applied the statutory guidance as they believed it was intended to be read – that a transgender individual holding a GRC is entitled to have their certificated gender recognised “for all purposes” in accordance with section 9(1) of the Gender Recognition Act 2004 (“GRA”).

For Women Scotland Ltd (“FWS”) is “a group of women from all over Scotland working to protect and strengthen women and children’s rights.”  They sought to challenge the legal definition of “woman” which, they believed, should refer to the biological definition only.  They argued that the GRA conflicted with the EqA, which only worked if a “woman” was defined as a “biological woman” and, therefore, section 9(3) of the GRA applied, which states that the provisions of section 9(1) are subject to provision made by “any other enactment or any subordinate legislation”.  They argued this to be a “carve out” for when section 9(1) would make that other legislation unworkable.

The claim was unsuccessful in the Outer House who found there to be no conflict between the GRA and the EqA.  They argued that the EqA never explicitly refers to biological sex and, since it was drafted after the GRA was already in place, the intention was that transgender women holding a GRC were to be protected under the protected characteristic of sex.  This finding was upheld on appeal to the Inner House.

FWS then further appealed to the SC.

The SC Judgment was a lengthy one (88 pages) and very thoroughly analysed the drafting and purpose of the EqA before reaching the conclusion that the only way it worked was to treat all references to “man” and “woman” as references to the biological sex, rather than certificated (by GRC) gender, or the gender which the individual identifies as.

They agreed with FWS that section 9(3) of the GRA allows the rule set out in section 9(1) to be disapplied where its application makes the provisions of another piece of legislation, such as the EqA, unworkable or incoherent.  Upon scrutinising the wording of the EqA, they found that many of the provisions, particularly those relating to pregnancy and maternity, could only be interpreted as referring to an individual’s biological sex.  They stressed that interpretation of the EqA needed to be clear and internally consistent so that those subject to its obligations can properly and consistently apply them.  On that basis it was not viable to use a biological definition of sex in relation to some parts of the EqA, but not others.  They also noted that allowing for the definition to include certificated gender would provide those with a GRC with more protection than those without.  In addition, applying the definition of certificated gender would create a quandary around matters such as (but not limited to) single sex services, single sex higher education institutions, and single sex charities.

Although the SC was at pains to stress that this Judgment should not be taken as a triumph of one group or viewpoint over another, that was exactly how it was taken by the supporters of FWS, who have celebrated the decision as a victory which they consider will do a great deal to protect single-sex spaces and groups (such as changing rooms and domestic abuse refuges).

The SC was also careful to point out that transgender individuals continued to have the specific protections afforded to them within the EqA, and still could bring claims in relation to:

• direct and indirect discrimination;
• harassment and victimisation;

on the basis of being transgender, as well as:

• discrimination on the grounds of perception of gender (e.g. a transgender woman being discriminated against or harassed on the basis that she was thought to be female).

Additionally, section 19A of the EqA allows individuals who do not share a protected characteristic, such as sex, but who share the same disadvantage as that protected group, to bring a claim in relation to it.

EHCR Guidance

Although the nature of the appeal before the SC meant that the focus of the Judgment was not on the Education sector or employment relationships, it seemed clear that the principles laid down would apply to those situations as well as to the provisions of services.  However, exactly how the principles would translate remained to be seen.

We did not need to wait very long for the EHRC to publish ‘interim guidance’, and that guidance couldn’t be much clearer.

The most obvious and immediate scenario where the Judgment might have been expected to impact the Education sector is in relation to the provision of single-sex toilet and changing facilities.  Prior to the Judgment, it was likely that, had a transgender woman or girl been denied the right to use female toilet facilities, that would have given rise to a significant risk of a discrimination claim.

The EHRC interim guidance on this point is unequivocal and states that “trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities” (emphasis added).  It goes on to explain that: “where possible” mixed-sex toilets (located in individual, lockable rooms, rather than cubicles) in addition to single sex facilities are the preferred solution.

However, further guidance will be required to ensure that educators understand and implement the new legal requirements in relation to inclusion in competitive sport and other policy decisions that affect trans students and teachers.

Implications for employers in the Education sector

The SC’s decision will inevitably give rise to many practical implications for employers, who will need to try and ensure that a balance is struck between complying with the law and avoiding discriminating against transgender employees.

Educational establishments will now need to proactively review, and potentially update, their policies in their Handbooks such as Equality and Diversity Policies to ensure that they reflect the distinction between biological sex and gender identity in order to align with the SC’s interpretation of “sex” and “woman” (as well as “man” being a person who is biologically male).  In doing so, organisations should be mindful of the impact of the decision on transgender employees and should try to strike a balance between legal compliance and ensuring an inclusive workplace.

Employers should also reassess the provision of gender specific facilities, such as toilets and changing rooms, to ensure that they comply with the legal definitions established by the SC Judgment. This could involve creating clear policies on the use of the facilities by transgender employees, while maintaining compliance with anti-discrimination protections.  In practice, where employers have the space and resources to do so, this could mean offering gender neutral facilities.

Recruitment and promotion practices may also be affected by this decision. Employers will need to consider whether initiatives or programmes aimed at increasing female representation which are designed to support women are based on biological sex in compliance with the EqA rather than acquired gender.

Finally, employers should consider providing training to HR teams and managers on the implications of this ruling. The training should include the legal definitions of sex and gender, the rights and inclusions of transgender employees and how to handle related workplace issues lawfully and sensitively.

If you have any questions about how this Judgment will affect your organisation, please contact a member of our team.