In a landmark decision, the UK Supreme Court ruled that the legal definition of a woman is based on biological sex, For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [2025] UKSC 16, (on appeal from: [2023] CSIH 37). Relevant documents are:

• Supreme Court Case Summary (PDF)
• Judgment on BAILII (HTML)
• Supreme Court Judgment, (16 April 2025)
• Press Summary, (16 April 2025)

The EHRC statement on Supreme Court ruling in For Women Scotland v Scottish Ministers (16 April 2025) is here.

Summary of Supreme Court’s reasoning

Preamble

[1]. This appeal is concerned with establishing the correct interpretation of the Equality Act 2010 (“the EA 2010”) which seeks to give statutory protection to people who are at risk of suffering from unlawful discrimination. The questions raised by this appeal directly affect women and members of the trans community…

[2]. 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 EA 2010. It has a more limited role which does not involve making policy. The principal question which the court addresses on this appeal is the meaning of the words which Parliament has used in the EA 2010 in legislating to protect women and members of the trans community against discrimination. Our task is to see if those words can bear a coherent and predictable meaning within the EA 2010 consistently with the Gender Recognition Act 2004 (“the GRA 2004”).

[3]. As explained more fully below, the EA 2010 seeks to reduce inequality and to protect people with protected characteristics against discrimination. Among the people whom the EA 2010 recognises as having protected characteristics are women, whose protected characteristic is sex, and “transsexual” people, whose protected characteristic is gender reassignment.

[4]. The question for this court is a matter of statutory interpretation. But before discussing the general approach to statutory interpretation, we set out the structure of this judgment and address the matter of terminology.

[5]. We discuss terminology, the approach to statutory interpretation and the factual background between paras 6 and 35. We address the historical background to the GRA 2004, its interpretation and its operation between paras 36 and 111. We then between paras 112 and 264 address in some detail the interpretation of the EA 2010 to give its provisions a coherent and predictable meaning. We summarise our reasoning in para 265.

[…]

(22) Summary of our reasoning

[265]. We are aware that this is a long judgment. It may assist therefore if we summarise our reasoning.

(i} The question for the court is a question of statutory interpretation; we are concerned with the meaning of the provisions of the EA 2010 in the light of section 9 of the GRA (para 2).

(ii) Parliament in using the words “man” and “woman” in the SDA 1975 referred to biological sex (paras 36-51).

(iii) The 1999 Regulations, enacted in response to P v S, created a new protected characteristic of a person intending to undergo, or undergoing or having undergone gender reassignment. The 1999 Regulations did not amend the meaning of “man” or “woman” in the SDA 1975 (paras 54-62).

(iv)  The GRA 2004 did not amend the meaning of “man” and “woman” in the SDA 1975 (para 80).

(v) Section 9(3) of the GRA 2004 disapplies the rule in section 9(1) of that Act where the words of legislation, enacted before or after the commencement of the GRA 2004, are on careful consideration interpreted in their context and having regard to their purpose to be inconsistent with that rule. It is not necessary that there are express words disapplying the rule in section 9(1) of the GRA 2004 or that such disapplication arises by necessary implication as the legality principle does not apply (paras 99-104).

(vi)  The context in which the EA 2010 was enacted was therefore that the SDA 1975 definitions of “man” and “woman” referred to biological sex and trans people had the protected characteristic of gender reassignment.

(vii) The EA 2010 is an amending and consolidating statute. It enacts group- based protections against discrimination on the grounds of sex and gender reassignment and imposes duties of positive action (paras 113, 142-149).

(viii) It is important that the EA 2010 is interpreted in a clear and consistent way so that groups which share a protected characteristic can be identified by those on whom the Act imposes obligations so that they can perform those obligations in a practical way (paras 151-154).

(ix) There is no indication in relevant secondary materials that the EA 2010 modified in any material way the meaning of “man” and “woman” or “sex” from the meanings in the SDA 1975 (para 164).

(x) Interpreting “sex” as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings. As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity (sections 13(6), 17 and 18), and to protection from risks specifically affecting women (Schedule 22, paragraph 2), can only be interpreted as referring to biological sex (paras 172, 177-188).

(xi) We reject the suggestion of the Inner House that the words can bear a variable meaning so that in the provisions relating to pregnancy and maternity the EA 2010 is referring to biological sex only, while elsewhere it refers to certificated sex as well (paras 189-197).

(xii) Gender reassignment and sex are separate bases for discrimination and inequality. The interpretation favoured by the EHRC and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC greater rights than those who do not. Those seeking to perform their obligations under the Act would have no obvious means of distinguishing between the two sub-groups to whom different duties were owed, particularly since they could not ask persons whether they had obtained a GRC (paras 198-203).

(xiii) That interpretation would also seriously 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 (paras 204-209).

(xiv) There are other provisions whose proper functioning requires a biological interpretation of “sex”. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others (paras 210-228).

(xv) Similar incoherence and impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces (paras 229-246).

(xvi) It is striking that the EHRC has advised the UK Government of the problems created by its interpretation of the EA 2010, which include many of the matters which we have discussed above, and has called for legislation to amend the Act. The absence of coherence and the practical problems to which that interpretation gives rise are clear pointers that the interpretation is not correct (para 247).

(xvii) The interpretation of the EA 2010 (ie the biological sex reading), which we conclude is the only correct one, does not cause disadvantage to trans people, with or without a GRC. In the light of case law interpreting the relevant provisions, they would be able to invoke the provisions on direct discrimination and harassment, and indirect discrimination. A certificated sex reading is not required to give them those protections (paras 248-263).

(xviii) We therefore conclude that the provisions of the EA 2010 which we have discussed are provisions to which section 9(3) of the GRA 2004 applies. The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate (para 264)

(23) Invalidity of the Scottish Government’s Guidance

[266] For all these reasons, we conclude that the Guidance issued by the Scottish Government is incorrect. A person with a GRC in the female gender does not come within the definition of “woman” for the purposes of sex discrimination in section 11 of the EA 2010. That in turn means that the definition of “woman” in section 2 of the 2018 Act, which Scottish Ministers accept must bear the same meaning as the term “woman” in section 11 and section 212 of the EA 2010, is limited to biological women and does not include trans women with a GRC. Because it is so limited, the 2018 Act does not stray beyond the exception permitted in section L2 of Schedule 5 to the Scotland Act into reserved matters. Therefore, construed in the way that we have held it is to be construed, the 2018 Act is within the competence of the Scottish Parliament and can operate to encourage the participation of women in senior positions in public life.

[267] There may well be public boards on which it is also important for trans people of either or both genders to be represented in order to ensure that their perspective is brought to bear in the board’s deliberations and in the organisation’s governance. Nothing in this judgment is intended to discourage the appointment of trans people to public boards or to minimise the importance of addressing their under-representation on such boards. The issue here is only whether the appointment of a trans woman who has a GRC counts as the appointment of a woman and so counts towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women. In our judgment it does not.

(24) Conclusion

[268]. We would allow the appeal.

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Updated 20 April 2025 at 17:12.