UK: Discrimination: Definition of “Sex”
Authors: Stephen Miller, Corinna Harris, and Sophie Jackson
The Supreme Court has ruled that the Equality Act definitions of “sex”, “woman” and “man” are based on biological sex. Following this judgment, the EHRC issued interim guidance.
The central question the UK’s highest court had to decide in For Women Scotland v The Scottish Ministers was whether the term “woman” in the Equality Act 2010 means a biological woman or whether it has a broader meaning to include transgender women with a gender recognition certificate. The Supreme Court unanimously found that the terms “woman”, “man” and “sex” in the Equality Act refer to biological sex. You can read our detailed update on this decision here.
In reaching its decision, the Supreme Court was keen to stress that the ruling should not be seen as a triumph of one or more groups in our society at the expense of another. They emphasised that the law still protects transgender people from unlawful discrimination through the protected characteristic of gender reassignment, and against direct and indirect discrimination and harassment in their acquired gender.
Britain’s equality regulator, the Equality and Human Rights Commission (EHRC), has issued an interim update on the implications of the Supreme Court’s decision, including providing some guidance on single-sex toilets and other single-sex spaces such as changing facilities.
The EHRC is updating its statutory and non-statutory guidance, with a public consultation expected in mid-May to help the EHRC understand the practical implications of the Court’s decision. It aims to provide an updated Code of Practice to the government by the end of June 2025 for ministerial approval.
Key Action Points for Human Resources and In-house Counsel
Employers should be conscious of their obligation to provide single sex changing and toilet facilities while continuing to ensure as far as possible that trans people are treated with dignity and protected from discrimination and harassment.
The judgment raises complex and sensitive issues for employers and service providers. If you have any queries on the judgment or its implications, please get in touch with your usual Clyde & Co contact.
For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)
