What is a woman for the purposes of the Equality Act? Today, the Supreme Court has decided

In For Women Scotland v The Scottish Ministers [2025] UKSC 16, the Supreme Court had to determine whether a person with a full gender recognition certificate (“GRC”) which recognises that their gender is female, is a “woman” for the purposes of the Equality Act 2010 (“EqA 2010”).

The Supreme Court unanimously concluded that the terms “man”, “woman” and “sex” in the EqA 2010 refers to biological sex, as a matter of statutory interpretation. Understandably, this decision has already attracted considerable attention from the press given that the Supreme Court endorsed a biological interpretation of “sex” in the EqA 2010.

The Supreme Court reached this conclusion for the following reasons:

• Protection from sex discrimination was initially recognised in the Sex Discrimination Act 1975 (“SDA 1975”), in which a distinction was drawn between a “man” and a “woman”. The Supreme Court noted that there could be no doubt “that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex – the trans community of course existed at the time but their recognition and protection did not”. In the European Court of Justice (“ECJ”) decision of P v S and Cornwall County Council [1996] ICR 795, the ECJ concluded that a trans individual did not have a remedy under the SDA 1975 but that the Equal Treatment Directive also applied to discrimination arising from gender reassignment, meaning that the SDA 1975 was incompatible with EU law. This resulted in Parliament adopting the Sex Discrimination (Gender Reassignment) Regulations 1999, which resulted in the SDA 1975 being amended to cover gender reassignment.
• The SDA 1975 and other anti-discrimination statutes were eventually replaced by the introduction of the EqA 2010. One of the various protected characteristics covered by the EqA 2010 include sex and gender reassignment, and the EqA 2010 does distinguish a “man” from a “woman” (e.g., see equal pay provisions such as section 65 EqA 2010). Having examined the provisions of the EqA 2010, the Supreme Court concluded that there was no indication that Parliament had intended to modify the definition of a “sex”.
• The ordinary meaning of “sex”, “man” and “woman” correspond with the biological characteristics that make an individual a man or a woman. The Supreme Court notes that adopting a non-biological definition of these concepts would cut across the definition of the protected characteristic of sex in an incoherent manner. It noted that “[r]eferences to a “woman” and “women” as a group sharing the protected characteristic of sex would include all females of any age… and those trans women (biological men) who have the protected characteristic of gender reassignment and a GRC (and who are therefore female as a matter of law). The same references would necessarily exclude men of any age, but they would also exclude some (biological) women living in the male gender with a GRC (trans men who are legally male).” The Supreme Court further noted that it would not make sense for conduct under the EqA 2010 in relation to sex-based rights and protections to be regulated by reference to categories that can only be ascertained by knowledge of those who possess a confidential GRC.

The Supreme Court also notes that there exist other provisions of the EqA 2010 which require a biological interpretation of “sex”. For example, the EqA 2010 provides for a specific exemption for communal accommodation in Schedule 3, paragraph 3 which allows for both sex discrimination and gender reassignment discrimination in relation to the “admission of persons to communal accommodation” and “the provision of a benefit, facility or service linked to accommodation”. Similar provisions which support the biological interpretation of sex also include the admission to single-sex higher education institutions (Schedule 12, paragraph 1 EqA 2010) and provisions regarding a woman’s fair participation in sport (section 195 EqA 2010).

Although this decision has understandably already given rise to a considerable amount of media interest, the Supreme Court’s conclusion does not by any means weaken the protection of trans people. As above, gender reassignment is already protected under the EqA 2010, and a trans person is also able to invoke provisions of direct sex discrimination, harassment and indirect sex discrimination (because, for example, a trans woman is perceived to be a woman).

The judgment can be accessed here.