The Supreme Court's gender ruling: What it means

What happens when a seemingly dry piece of Scottish legislation leads to a Supreme Court ruling that defines what it legally means to be a man or woman? The ramifications are far more extensive than anyone might have anticipated.

The Supreme Court's landmark ruling in For Women Scotland versus the Scottish Ministers (2025) has delivered clarity on a question that has caused political figures to squirm: what exactly is the legal definition of a woman under the Equality Act 2010? The unanimous judgment determines that for Equality Act purposes, the terms "man" and "woman" refer to biological sex rather than gender identity, even for those who possess a Gender Recognition Certificate.

This ruling creates tension between the Gender Recognition Act 2004, which states that an acquired gender becomes someone's gender "for all purposes," and the practical application of the Equality Act. The Supreme Court found that many provisions of the Equality Act would be unworkable without a biological definition of sex, particularly regarding pregnancy protections and single-sex spaces. While the judgment provides legal clarity, it creates complex challenges for employers trying to balance legal compliance with inclusivity.

Employers now face questions about managing facilities like toilets and changing rooms, with potential privacy concerns for transgender employees who may effectively be "outed" by facilities policies. This episode with Andrew Whiteaker and Helen Goss emphasises that while the legal definition is now clear, employers should continue demonstrating empathy and understanding toward all employees, providing training on inclusivity, and supporting transgender staff who may be affected by this ruling.

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Chapters

• 3:50 Gender Recognition Act Background
• 6:30 The Path to the Supreme Court
• 10:30 Supreme Court's Ruling on Biological Sex
• 19:00 Practical Implications for Employers
• 26:00 Future Guidance and Best Practices

Transcript

Andrew Whiteaker: 0:04 

Hello and welcome to the Employment Law Pod from Boyes Turner. My name's Andy Whittaker, I'm a partner in the employment team and today I'm joined by my colleague and fellow partner in the team, Helen Goss. 

Helen Goss: 0:14 

Hello everybody. 

Andrew Whiteaker: 0:15 

Hi Helen. So as ever with the Employment Law Pod, we like to look at recent cases, news stories, things in the press, anything that's related to employment law that we think might be of interest and we fancy a natter about, and today is no different. So what are we going to be talking about today, Helen? 

Helen Goss: 0:32 

Well, Andy, there is only really one thing that we can talk about, and that's the Scottish case. And you'll all know, I'm not referring to the Scottish play Macbeth, but the case that's just come down from the Supreme Court, which has decided the definition of a man and woman under the Equality Act 2010. 

Andrew Whiteaker: 0:53 

Yes, if we're being technically correct, the four women Scotland are limited versus the Scottish ministers of 2025. So that's the case that we're talking about. 

Helen Goss: 1:02 

So, essentially, that case started off coming from a dry piece of Scottish legislation in 2018, but has gone all the way up to the Supreme Court, which is the highest court in the land, and has resulted in a ruling that under the Equality Act, in a ruling that, under the Equality Act, the definition of woman or man means biological sex a person, is born with.

Andrew Whiteaker: 1:30 

In some respects it's quite a narrow ruling because it's considering particular definitions under one piece of legislation. But although it's narrow in that sense, it has very broad repercussions. 

Helen Goss: 1:44 

Yes, and you and I have discussed this before, but what it is is that it is a legal ruling on the definition of man and woman in discrimination law under the Equality Act. 

Andrew Whiteaker: 1:55 

Yeah, so what it is not? 

Helen Goss: 1:57 

Go on then. What is it not, Andy.

Andrew Whiteaker: 1:59 

What it is not, is the Supreme Court judges making any value judgments as to what they may personally think a man or a woman should be? They are simply looking at the legislation as it was drafted and trying to work out how the legislation works best. Or put it in another way does the legislation work if you read um male or female to mean anything other than the biological sex  that you were born with.

Helen Goss: 2:29 

But not notwithstanding the fact that it's not a value judgment which, as you absolutely rightly say, it isn't it has caused a lot of argument and upset misinformation and confusion as to what's actually going to happen next, particularly for the transgender community in the workplace and other single-sex designated areas. 

Andrew Whiteaker: 2:53 

Yes, and the judges were very, very clear in their judgments and were at pains to point out that this should not be seen as a victory by one side over another. It is this very narrow decision, but of course, that's not how it's been perceived or presented in many, many circumstances. 

Helen Goss: 3:12 

Well, let me just sort of talk about how we got to this point. And then if that's okay with you, Andy, I'll hand over to you to deal with the transition of the case through the various courts. 

Helen Goss: 3:27 

So, essentially, the Equality Act 2010, which, as employment law and HR practitioners, we deal with on a daily or several times daily basis, but strangely, now that we reflect back, it doesn't actually define what a man or a woman is, other than to just refer to male or female, which doesn't really take us any further in terms of what is a male or a female yeah so running in a. 

Andrew Whiteaker: 3:57 

In a parallel level is the gender recognition act 2004, um, so that predates the equality which Act, which is an important point, and it's one of the points that was made in the case. 

Helen Goss: 4:10 

Yeah. So what that provides is that a person living in a gender which is different from their birth gender may apply for a gender recognition certificate, or a GRC as we quite often refer to it. As Now, to get a gender recognition certificate, there is quite a lot of hoops to to jump through, in that there has to be medical evidence and then an assessment against various criteria, which often include an assessment as to whether someone has gender dysphoria, whether they've been living in that sex for two or more years and whether they actually intend to do so forever to death. Once a certificate has been issued, then that person's gender to use the terminology from the legislation becomes for all purposes the acquired gender. 

Andrew Whiteaker: 5:04 

Yes, for all purposes. Yes, for all purposes. The acquired gender yes, for all purposes. 

Helen Goss: 5:06 

Yes, for all purposes. So I think the prevailing view up until the Scottish case was that a woman or a man is either a biological man or woman or a transgender man or woman who has a gender recognition certificate. 

Andrew Whiteaker: 5:27 

Yes, I think that was the accepted position. 

Helen Goss: 5:29 

Yes, yeah, until the Scottish case. So, andy drumroll. 

Andrew Whiteaker: 5:36 

Yeah, so the genesis of this was around, as you said, some legislation in Scotland around trying to produce certain ratios of male and female attendance or representation on boards, and in some guidance that was produced by the Scottish government representation on boards and in some guidance that was produced by the Scottish government it clarified, or sought to clarify that when they were talking about women, for example, they included both biologically born women and trans women as well. 

Helen Goss: 6:01 

Trans women with a gender recognition certificate Exactly. 

Andrew Whiteaker: 6:12 

So that would that they would be counted towards that ratio, and that was something that was then challenged. Um, and that's the the genesis of this litigation. Um, and it's challenged on the basis of but what does the definition of man and woman mean for the purposes of the equality act? And, as you've identified, there is no, there is no definition we know from the gender recognition act Act of 2004,. As you said, that for all purposes, someone becomes their transitioned gender. 

Andrew Whiteaker: 6:35 

Or their lived, gender, their lived gender once they're in receipt of a gender recognition certificate. But there's also a carve-out, and this carve-out says that that is the case subject to provision made by this Act or other enactment or any subordinate legislation. 

Helen Goss: 6:52 

So that, then, is the problem that led to the Supreme Court case. 

Andrew Whiteaker: 6:57 

Yes, so in slightly less legal ease. That's the case unless there's some other law that says otherwise. 

Helen Goss: 7:03 

Yes, that's essentially what it's saying, and presumably then Force Women Scotland challenged the definitions on that basis. 

Andrew Whiteaker: 7:11 

Absolutely, and they were saying that, essentially, that carve-out applies in respect of the Equality Act. Yes, and therefore acquisition of a GRC does not result in you being considered to be a woman or a man simply because you are in possession of a GRC. 

Helen Goss: 7:32 

And, of course, there's been a lot of debate, not least in political circles, where politicians of whichever colour have constantly been asked what is a woman? What is a woman? And it does cause an awful lot of avoidance and almost squirming from politicians when they're asked that question, doesn't it it? 

Andrew Whiteaker: 7:50 

does, and I think it still remains a live question. Because what is a woman? We know the answer to that. 

Andrew Whiteaker: 7:59 

for the purposes of the Equality, Act but only for the purposes of the Equality Act only. So what someone's lived experience might be, what their personal circumstances might be, how they feel, that doesn't? It's not boiled down to the definition of the equality act. So it remains quite a difficult question to answer because, as we know, in political debate nuance gets lost, doesn't it? If you excuse the pun. Everything needs to be binary you're either right or you're wrong. You know, there's, no, there's no room for ambiguity. 

Andrew Whiteaker: 8:33 

So, um, yeah, that's why that question keeps getting put to, to politicians to answer and, in light of the judgment that we're going to talk about in a minute, it feels like there's really one answer that can be given, and many politicians are relying on the crutch of just saying well, the supreme court says it's this. But that also goes to an interesting point about this particular case, and that is that we've got this uncertainty about what the Equality Act means, and that's the genesis of the case. 

Helen Goss: 9:02 

Or rather, we had some uncertainty. 

Andrew Whiteaker: 9:05 

So potentially the simplest way to resolve that is for Parliament to legislate, Because the courts don't make law. What courts do is they interpret the law that exists. So this could have been resolved if Parliament had passed legislation saying well, you know, the Equality Act says man and woman. What it means in the Equality Act is X, Y and Z. 

Helen Goss: 9:32 

Yes, and do you think it's because it's a political hot potato that they didn't do that and left the job to the Supreme Court? 

Andrew Whiteaker: 9:41 

I think that's probably a fair assumption that it's politically such a difficult issue to deal with that both the previous government and the current government left it alone to a certain extent. 

Helen Goss: 9:53 

So the Supreme Court is the highest court in the land, so there are no other appeal routes left in respect of that judgment. So the only way now that we can get further interpretation is through case law, isn't it? 

Andrew Whiteaker: 10:11 

Yeah, that's right. So we're getting ahead of ourselves a little bit. No, no, that's fine. But you're right, you know, it is still the scope for Parliament to address this through legislation or to change things or to change the law as it stands. The Supreme Court has just said that, on the basis of the law as it is currently written, this is the correct interpretation and it's important, I think, to stop for just one moment as well to talk about the Supreme Court, because the Supreme Court, if you envisage in your mind for one moment a court, maybe you've been watching Judge Judy in America or Judge John Deed or any crime procedural or court procedural. 

Helen Goss: 10:47 

It's not quite as exciting as that, is it? 

Andrew Whiteaker: 10:49 

It's not as exciting as that and also what you do not have are witnesses. Fundamentally, what you have are legal representatives who are making submissions, legal submissions, quite dusty and dry submissions on technical points of law which the judges then need to consider. You don't have individuals turning up and giving evidence of their personal experiences. 

Helen Goss: 11:14 

No, what you do often get is several interested parties coming together to join in the proceedings because the definition or the interpretation is very important going forward. 

Helen Goss: 11:26 

I was involved in a House of Lords case because it was pre um when the supreme court came into being in 2009 which essentially replaced the house of lords exactly, and um, it was about the rights of employees in a different jurisdiction to actually bring proceedings um in the uk and um, there were several parties on on both sides and it was what you would call a test case. And there were hours and hours going back looking through Hansard as to the placing of the word, and, and I have to say I thought these are four days I will never get back. 

Andrew Whiteaker: 12:09 

You made a valuable contribution to jurisprudence in the UK. 

Helen Goss: 12:12 

Helen, I did Never forget that I did. Thank you, Andy. 

Andrew Whiteaker: 12:14 

But you're right. So what you get are interested parties, normally representatives of organisations, of advocacy groups, those sort of parties making representations. What you don't have is individuals turning up and saying well, this is what I think. 

Helen Goss: 12:36 

And there has been some criticism. I was going to say because they refused some individuals, but then there were no, were there? 

Andrew Whiteaker: 12:39 

other interested parties other than the ECHR. So there was an opportunity for advocacy groups and others to come forward and make representations. Amnesty did, for example, the Scottish government did, so there's scope for representations to be made. What did not happen is you didn't have individuals. So, for example, trans individuals who wish to share their own views and opinions or experiences, they were not granted permission to make representations in this case. But that is not unusual for the reasons that we've set out. No, you can have advocacy groups doing it, but it's not normally the case that an individual will be granted the opportunity. 

Helen Goss: 13:18 

No. 

Andrew Whiteaker: 13:19 

Okay. So, having said all of that, let's actually have a look at the decision of the Supreme Court and, as is the case, it's an appeals court. So there have been previous decisions that have been made on this, and the decision prior to it reaching the supreme court was at the inner house of the court of session in scotland, which concluded that, for the purposes of the equality act, um, if you do receive a grc, then that is included in those for all purposes, and that must have been as evidently what parliament intended when it drafted the Equality Act, because, don't forget, that followed the Gender Recognition Act. 

Helen Goss: 13:56 

So what you're saying is that the view of the Scottish court was that if you're born female or male and if you have a gender reassignment certificate, then you are a man or a woman. 

Andrew Whiteaker: 14:11 

Yes, because that must have been what the Equality Act intended when it was drafted. It was evidently what the intent was. It did recognise that that gave rise to some peculiarities and difficulties in interpreting the Equality Act, but nonetheless concluded that that was the conclusion that it reached. Supreme Court then. So application made to the Supreme Court and the appellants, so the people appealing to the Supreme Court said that, amongst other things, the Equality Act would be unworkable if a man could become a woman or vice versa, by simply having a gender recognition certificate. 

Andrew Whiteaker: 14:52 

It can't work. There are sections of it that don't really work properly. So, for example just to give you an example of how that might be the case, if you are a trans man, so therefore you are someone who was biologically born a woman but now identifies as a man. If it were the case, that acquisition of a GRC meant that you were now classed as a man for the purposes of the Equality Act, the legislation in the Equality Act that protects or provides protections to individuals who are pregnant or who go on maternity leave are afforded to women, are afforded to women, but that individual would no longer be a woman for the purposes of the Equality Act because they are now a man because they are in possession of a GRC. 

Helen Goss: 15:46 

And presumably that was a problem because transgender men can technically still be pregnant. 

Andrew Whiteaker: 15:52 

Absolutely that. So you could have the circumstances where you have a trans man who is pregnant but then is denied protection under the Act in respect of that pregnancy or any maternity leave that they might go on if they are in possession of a GRC. But if they are not in possession of a GRC then they would have protection because they are a woman. 

Helen Goss: 16:14 

So would they not get the relevant protection under the gender reassignment protected characteristic? 

Andrew Whiteaker: 16:20 

No, not in those circumstances, because it's really about something being given to you as a woman. It's a right, it's a protection, something that you get as a woman, and also representations were made about how this would also lead to the erosion of women-only spaces, which again, is a really sort of hot, that's a big part of this whole debate now, isn't it? 

Andrew Whiteaker: 16:39 

A hot topic absolutely Whereas the respondents in this case so the Scottish government essentially ran the same argument or similar arguments to that that were upheld in the initial hearing in the lower court that were upheld in the initial hearing in the lower court that basically, the Parliament must have had the GR the Gender Recognition Act, in its mind when it drafted the Equality Act. 

Andrew Whiteaker: 17:02 

So it knew all of this in advance and it must have taken that into consideration. And it knew the all-purposes provision and nonetheless it still drafted it in the way that it did. So it must have meant it to be this. So what did the Supreme Court conclude? Well, in an 88-page judgment, which is very clear and detailed, as an 88-page judgment would be, the judges found unanimously that for the purposes of the Equality Act, then your gender is how you were born and the acquisition or otherwise of a GRC does not affect that for the purposes of the rights emanating from the Act. 

Helen Goss: 17:43 

Yes, and as we said at the very beginning, that is a legal reasoning and a legal outcome. It's not a value judgment. 

Andrew Whiteaker: 17:53 

Yeah, exactly that, and it held essentially that the carve-out applies. So that carve-out that we spoke about previously, so that the all purposes doesn't apply here, because the carve-out applies it said that you can really only read the act coherently and for it to make sense if biological sex is what we're talking about. Otherwise, you'd have, for example, two subgroups where you'd have trans people both with a GRC and without a GRC. That you would have to treat differently? 

Andrew Whiteaker: 18:24 

Yes, and also there's practical difficulties that arise as well. So, for example, if you have a gender recognition certificate, grc, that's a confidential matter and it's a criminal offence to disclose matters pertaining to an individual's GRC to others where it's been acquired in an official capacity. Rather, a trans, a man who does have a GRC and who does not have a GRC, for example, then you're having to potentially explain why someone gets certain rights and someone doesn't get. Other doesn't get the same rights. You can only really do that by identifying the fact that they have a GRC, which may give rise to criminal liabilities, because you're not allowed to disclose that so that there's there's, there's, there's more, there's more. But essentially that's where we find ourselves, and the supreme court was also very keen to point out that, of course, the protections afforded to the trans community via the gender reassignment being a protected characteristic under the equality act, continue to apply well, of course yes so. 

Andrew Whiteaker: 19:36 

So it is not that the trans community is left without protection, but it does mean that, at least for the purposes of the definition of male and female, we are looking at biological sex. 

Helen Goss: 19:48 

So, andy, the $6 million question is what are employers to do? Because the judgment is, as you said, in 88 pages very, very clear. I was listening to the radio or the TV yesterday and the education minister was on and she was asked specifically whether transgender men or women could be stopped from using their lived gender toilets or changing rooms, and she looked extremely uncomfortable but said, yes, they can. 

Andrew Whiteaker: 20:26 

Yeah, and I think this is a. This is an example of how a very clear, very precise, very clear, very precise, very detailed judgments can have very imprecise, unclear and uncertain implications and, in recognition of that, the Equalities and Human Rights Commission came out very quickly and said that they would be seeking to, or they will be working very hard to produce revised codes of practice for employers and other organisations to address some of the complications and uncertainties that arise from this decision, primarily in areas such as single-sex spaces, changing room, changing facilities, toilet spaces that kind of. 

Andrew Whiteaker: 21:13 

Thing because those are the things that are going to be on on the mind of of employers and businesses, I think most absolutely it's. 

Andrew Whiteaker: 21:19 

It's always and I'm I'm not being flippant, but it is nearly always issues in respect of toilets and changing rooms, um, that come to the forefront in the work environment yeah, and and single sex spaces, and you know there's wider discussions to be had, of course, around um access to um competitive sport or um that kind of thing too, but I think that the thing in in most people, in the forefront of most people's minds is is around those sort of issues. So the question does arise well, what? What should employers be doing at this time? 

Helen Goss: 21:51 

it's quite difficult to advise in detail until such time as we do see and absorb the EHRC guidance. 

Andrew Whiteaker: 21:59 

Yeah, I think, probably with certainty. There are some things that we know for certain. So what we know for certain is that an employer is, for example, required to provide single-sex facilities, so it is required to provide toilets for male and female employees. And we now know with certainty, following the Supreme Court judgment, that when we talk about male and female, we mean biological sex, and so an employer is obliged to say this toilet here is for men and this toilet here is for women, example, because you are required to provide those, say, those single sex spaces so it's not going to be sufficient to designate all toilet facilities as unisex no, because there's an obligation to provide single sex spaces. 

Andrew Whiteaker: 22:49 

Now what employers can do is they can say well, these facilities on floor number one are single sex and these facilities on floor number two are unisex, and anyone can use them. 

Helen Goss: 23:01 

For example, and then anyone can make their decision as to where they go. 

Andrew Whiteaker: 23:05 

But of course not all employers are large enough or have the money or have the facilities available to do it. 

Andrew Whiteaker: 23:12 

So, yeah, like I said, this is the example of a very clear decision, a very clear judgment, a very clear guidance giving rise to some uncertainties. Um, but yeah, you, you would need to provide those single sex spaces and if you do not have a unisex space, then in theory, yes, a trans woman would need to continue to use the male toilets and a trans man would need to continue to, would need to use the women's toilets. That gives I've already referred to the problems around, you know potentially outing your colleagues as well. 

Helen Goss: 23:45 

That is it. That is a real issue, because not everybody in a workplace will know the biological sex of their work colleagues. 

Andrew Whiteaker: 23:56 

And we know the trans community is a historically vulnerable one, so this does remain quite a challenging issue to address. You're right that we can wait and we are anticipating receiving updated advice from the EHRC in the next few months that will give some further guidance and clarity towards employers about what they should and shouldn't be doing. But you know, the strict answer to that question about toilets and changing facilities and that kind of thing now is following that clear decision by the Supreme Court is that those facilities need to be provided on a biological sex basis. 

Helen Goss: 24:33 

In terms of what we know that you can do is to provide training on inclusivity and tolerance, as well as zero tolerance in respect of discrimination, whether that's to transgender people or indeed any other protected person, and look to provide support for transgender employees who are going to be affected by this decision, particularly if it's an organization where there is a serious risk that transgender people may be outed when they're not already out in their workplace yeah, I think so. 

Andrew Whiteaker: 25:13 

Ultimately, the supreme court was being asked to make a binary decision. Yeah, male or female? Does it mean biological sex or can it be altered by the GRC? That's a yes or no answer, and it gave its answer. So we've got a binary outcome there. But actually the implications of it are not binary and there are many different ways that this can complicate the lives of individuals or at least put some challenges in front of employers as to how they manage those situations. I think, although we have some clarity about the law, it does require individuals and employers to continue to demonstrate empathy and understanding towards all of their colleagues in the workplace to try and ensure that everyone's dignity is protected. 

Helen Goss: 25:54 

And in the past, a lot of women who are sharing changing rooms with transgender women may now feel empowered to say they no longer wish to. 

Andrew Whiteaker: 26:09 

Yes, I think that may well be the case, but I think it is important for employers to continue to demonstrate inclusivity, understanding and empathy towards everyone in the workplace. 

Helen Goss: 26:19 

You're absolutely right, Andy. There are a lot of challenges down the road, but we will revisit when we hear more from the ECHR. 

Andrew Whiteaker: 26:28 

OK, well, thanks as ever, helen, always enjoyable. 

Helen Goss: 26:31 

Thanks, Andy, and thanks everybody. 

Andrew Whiteaker: 26:33 

If you're interested in checking out any more episodes in this series, then you can go to the Boys' Turner website. You can also follow wherever you listen to this podcast. Thanks again, everyone, and goodbye.