A line has been drawn between biological and transgender women. But, practically, what does this mean for employers?

This article was co-authored by Ariane Kim Gonzalez, Trainee Solicitor, London.

In a landmark judgment with potentially wide-reaching implications, the UK Supreme Court has ruled that references to ‘sex’ and a ‘woman’ under the Equality Act 2010 (Equality Act) pertain strictly to biological sex and biological women.

The unanimous decision handed down by the Court on 16 April 2025 in the case of For Women Scotland Ltd (FWS) v The Scottish Ministers firmly ruled that a ‘woman’ refers to a female-born person only and does not apply to a transgender individual even if they hold a Gender Recognition Certificate (GRC). This highlights a shift in the ongoing legal and political debate surrounding the legal status of transgender individuals and the interpretation of single-sex service protections.

Case background

FWS is a campaign group that advocates for the protection of women’s and children's rights and which sought to challenge the legality of the guidance set by the Scottish Government in relation to the Gender Representation on Public Boards (Scotland) Act 2018 (the Act). The Act, intended to redress gender imbalance through positive action by requiring public boards to ensure 50% of their members are women, also extended the definition of a ‘woman’ to include transgender women holding a GRC, prompting the campaign group to challenge the lawfulness of this expanded definition. At first instance, and subsequently on appeal, the Scottish courts took a more expansive view, upholding the inclusion of transgender women with a GRC as consistent with the Equality Act. Following an unsuccessful appeal in the Outer House and Inner House of the Court of Session, FWS appealed to the Supreme Court.

Supreme Court decision and legal implications

Contrary to the Scottish Courts, the UK Supreme Court took a different approach, focusing on the statutory interpretation of the provisions of the Equality Act to determine whether ‘woman’ could include a transgender individual in possession of a GRC.

The Supreme Court, emphasising the importance of interpreting the Equality Act in a clear and consistent manner, recognised ‘sex’ and ‘gender reassignment' as two separate and distinct protected characteristics. It found that the attempt to merge the two effectively altered the meaning of a ‘woman’ which it deemed unlawful. The Supreme Court reaffirmed that transgender individuals remain protected from discrimination, but such protections exist within their own statutory framework.

This case has understandably received a great deal of attention but what is the practical effect for employers?

Reassurance for employers

Whilst the FWS case has provided much needed clarity over the interpretation of existing legislation, it has not added or removed any protections for individuals and therefore, in reality, little is likely to change in the way employers manage their employees on a day-to-day basis. As emphasised by the Supreme Court, transgender people remain protected from discrimination under the existing provisions of the Equality Act and employers should continue to be mindful of these protections and act accordingly and with appropriate sensitivity.

However, this would be a good opportunity for businesses to review their diversity and inclusion policies, and training on such, and ensure these are current and thorough. Single sex facilities e.g. toilets, changing rooms, prayer rooms may continue to be provided by employers and/or service providers but employers/providers should continue to assess whether exclusions or limitations are lawful and proportionate. Employers may wish to consider conducting a legal risk assessment of potentially high-sensitivity environments such as healthcare, education, and custodial settings.

Impact on future claims and considerations for insurers

In explaining its judgment, the Supreme Court clarified that the concept of associative discrimination extends to both direct and indirect discrimination such that transgender individuals are still able to benefit from protections under the Equality Act even where a GRC has not been obtained. They are also still able to pursue claims for harassment where there is unwanted conduct related to a protected characteristic even if they themselves do not possess the relevant protected characteristic. It is therefore possible that this clarification may lead to an increase in claims of associated discrimination by transgender employees and workers.

However, ultimately, the FWS case has not created any new rights or protections and we therefore do not consider it likely to result in a material increase in employment litigation on the point. The case may, however, have more significant implications for insurers in other areas such as private medical insurance claims. 

Comment

In providing the judgment, Lord Hodge warned, "… against reading this judgment as a triumph for one or more groups in our society at the expense of another - it is not."

Whilst the FWS decision does not diminish protections against discrimination for transgender people, it makes clear that GRCs do not confer rights to access sex-segregated spaces or services. Organisations should prepare to manage situations with appropriate sensitivity and respect. Clear, respectful communications and robust, clearly communicated policies and procedures will remain essential to safeguarding from potential workplace disputes.