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This article was originally published by ALARM. ALARM is a not-for-profit professional membership association that has supported risk management practitioners since 1991. They provide members with outstanding support to achieve professional excellence including education, training, guidance and best practice, networking, and industry recognition for excellence across risk management. For more information, visit alarmrisk.com and follow @ALARMrisk on Twitter and LinkedIn.
The Supreme Court, in its April 2025 judgment For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 ruled that under the EqA 2010, ‘sex’ means biological sex.
The key issue The Supreme Court determined was whether a person with a full Gender Recognition Certificate (GRC) (a legal document which acknowledges a person has changed their legal sex to match their gender identity) is recognised as a ‘woman’ for the purposes of the EqA 2010.
The Supreme Court ruled that under the EqA 2010, ‘sex’ means biological sex: that a ‘woman’ is a biological woman or girl (a person born female), and a ‘man’ is a biological man or boy (a person born male). If an individual identifies as transgender, that individual does not change ‘sex’ for the purposes of the EqA 2010, even if they hold a GRC.
Transgender people maintain rights and protections
The decision emphasised that transgender people maintain the rights and protections afforded to them under EqA 2010, as they have the protected characteristic of gender reassignment. Transgender people continue to be protected against harassment and discrimination by virtue of their gender reassignment.
Organisations should use the legal definition of ‘sex’ meaning biological sex, but should also carefully consider and balance transgender rights.
Public service organisations will have to implement policies that are compliant with the legal definition of ‘sex’ meaning biological sex. This includes their policies’ impact on staff, visitors to their premises, students and third parties.
Considerations of The Supreme Court decision
The Equality and Human Rights Commission (EHRC) has provided interim guidance on the implications of The Supreme Court ruling. The current guidance is not detailed, and further direction is expected later in 2025. Also, the dialogue in relation to this case is far from over.
For example, the UK’s first transgender judge, Victoria McCloud, has launched a case against the UK in the European Court of Human Rights challenging the process which led to the Supreme Court ruling. This is on the basis that the Supreme Court refused to hear from her and other transgender individuals or groups in reaching its decision.
At the same time, For Women Scotland has been critical of the Scottish Government’s failure to implement the ruling quickly enough in schools and prisons.
For now, here are some points on the interim guidance, plus considerations for ALARM members.
Toilets, showers and changing facilities
Policies and practices must be reviewed to ensure that ‘sex’ is defined as biological sex. For example, policies that previously included transgender women with a GRC within the definition of a ‘woman’, or transgender men with a GRC as a ‘man’, should be reviewed to ensure that ‘sex’ only includes those of that biological sex.
Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. It is not compulsory for services that are open to the public to be provided on a single-sex basis, or to provide single-sex facilities such as toilets.
Facilities may be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the EqA 2010. However, it is possible that if the only provision is mixed-sex, this could be construed as indirect discrimination.
Where separate single-sex facilities are provided in workplaces and services that are open to the public, those facilities must be used in accordance with biological sex.
Where facilities are single-sex, transgender people should not be put in a position where there are no facilities for them to use. This means that where possible mixed-sex toilets, washing or changing facilities should be provided in addition to single sex facilities.
Education
The Supreme Court judgment addressed single-sex education institutions, stating that providers must ensure that ‘sex’ for the purposes of admissions is aligned with the legal definition of biological sex, and not gender identity.
Admission policies should be reviewed to ensure the terms used are compliant with the law.
Education providers should also consider their policies and procedures to meet free speech obligations to ensure there are no constraints on lawful free speech. This must be carefully balanced with providing a safe space for transgender and/or gender fluid students, staff and visitors.
Schools in England and Wales must provide separate single-sex toilets for children over the age of 8 and single-sex changing facilities for children over the age of 11. Scottish law requires Scottish schools to provide separate single-sex toilets for all students (irrespective of age).
Across the education sector, students must use facilities that align with their biological sex. Suitable alternative provisions may be required; including mixed-sex facilities for transgender students.
Key takeaways
The Code of Practice will be updated by the EHRC following The Supreme Court decision, and review of the 50,000 responses received to their code of practice consultation which closed on 30 June 2025. Once any changes have been approved by the UK government, a date will be set as to when these changes will come into force. Service providers, public bodies and associations can, therefore, expect formal guidance in relation to their duties under the EqA 2010 and how to put them into practice.
In the meantime, practical measures to implement the changes now, include:
- Workplace and education policies using the term ‘sex’ must mean biological sex.
- Single-sex facilities, where provided, must be used in accordance with biological sex. Clear signage must provide clarity.
- Organisations should provide single-sex female and single-sex male facilities and consider a third category of mixed-sex facilities to provide services for all.
- Mixed-sex facilities should be separate from disabled toilets, to ensure those with disabilities are not wrongly disadvantaged or discriminated against.
- Transgender people maintain protection and rights under the EqA 2010 on the basis of their protected characteristic of gender reassignment.
Organisations may want to seek independent legal advice to ensure they continue to act within the law.
Public sector
Education
United Kingdom