And speaking of legends brings me to a legendarily contentious topic which you will have heard much about in recent weeks. Strap in…

In the case of For Women Scotland Ltd v The Scottish Ministers 2025, the UK Supreme Court had to decide whether the term ‘sex’ in the Equality Act 2010 meant biological sex only, or if it could be interpreted to include the acquired gender of an individual with a Gender Recognition Certificate.

This case arose following guidance issued by the Scottish Parliament concerning gender representation targets for public boards. The guidance stated that for the purpose of gender-based targets, the definition of ‘woman’ is the same as in the Equality Act 2010 and that a trans woman with a Gender Recognition Certificate would be recognised as female under the EA 2010. This would mean that the appointment of a trans woman with a GRC to a public board would count as the appointment of a woman.

For Woman Scotland challenged the lawfulness of this guidance. FWS’s argument was that the terms ‘man’, ‘woman’, and ‘sex’ in the EA 2010 referred to biological sex only. The lower Scottish courts dismissed FWS’s claim. The case was then heard by the UK Supreme Court.

The court began by stating that its role is not to define “woman” in general terms but to interpret the language used by Parliament within the EA 2010. The central question for the court was whether references to "sex,” “man,” and “woman” in the EA 2010 include persons who have legally changed their gender via a GRC or whether they solely refer to biological sex.

In its reasoning, the court examined the wording in several EA 2010 provisions. When looking at the use of the words "sex,” “man,” and “woman” in the context of the EA 2010 as a whole, the court reasoned that an interpretation of sex that included certified sex would make the provisions “incoherent and unworkable”. For example, the provisions relating to pregnancy and maternity make reference to a woman who is pregnant or who is breast feeding. These provisions only make sense if “woman” has a biological meaning. The court rejected the argument that “sex” could have a variable meaning, so that in these provisions of the EA 2010 “sex” could refer solely to biological sex, but include certified sex in other provisions. 

In addition, the court found it would make no sense if the application of sex-based rights and protections were dependant on the individual possessing a confidential GRC. This could create a two-tier system where some trans people have more rights and protections than others.

The court concluded that the biological definition of "sex" should apply throughout the EA 2010. The Scottish Government's guidance was deemed incorrect. A trans woman with a GRC does not fall within the EA 2010’s definition of a "woman" for sex discrimination purposes. Therefore, the appointment of a trans woman (whether she has a GRC or not) will not count as the appointment of a woman for the purposes of reaching gender representation targets on public boards.

This ruling does not mean that transgender people are unprotected under the EA 2010. It is still open to a transgender person to raise a claim due to their perceived sex or because of their association with a particular gender. For example, a trans woman may bring a claim of sex discrimination “because she is perceived as a woman and can compare her treatment with that of a person not perceived to be a woman (whether that is a biological male or a trans man perceived to be male). There is no need for her to declare her true biological sex.” The same is true for harassment claims. Transgender people are also protected from discrimination and harassment based on their protected characteristic of gender reassignment.

While the ruling was intended to bring some clarity to the law, employers may actually feel more confused as to what their obligations are. The Equality and Human Rights Commission has indicated it will issue updated guidance following the court’s ruling. In the meantime, employers should remember that any policy, criterion or practice which puts an employee at a disadvantage due to a protected characteristic will need to be objectively justified, and all employees have the right to be treated with humanity, dignity, and respect.