In response to the recent Supreme Court ruling in For Women Scotland Ltd v The Scottish Ministers, the Equality and Human Rights Commission (EHRC) has issued interim guidance to help provide employers and other duty-bearers with some clarity on the practical implications of the decision.
The interim guidance is to be followed by more in-depth statutory and non-statutory guidance.
Supreme Court Judgment Overview
On 16 April 2025, the UK Supreme Court unanimously ruled that the terms “man”, “woman” and “sex” in the Equality Act 2010 refer to biological sex, not gender identity or acquired gender through a Gender Recognition Certificate (GRC). The decision arose from a challenge to the Scottish Government’s guidance, which had included trans women with GRCs in the definition of “woman” for public board representation.
The Court held that such inclusion was inconsistent with the Equality Act, emphasising that legal definitions of sex are based on biological characteristics.
In employment terms, the judgment will have significant implications for workplace policies, particularly concerning single-sex facilities and the treatment of transgender employees.
EHRC Interim Guidance
The Equality and Human Rights Commission (EHRC) is responsible for upholding equality legislation and advising both policymakers and employers. Following the Supreme Court ruling, the EHRC faced calls to issue clarification.
In response, the EHRC has released a short, interim update, ahead of updating its statutory and non-statutory guidance.
The interim guidance confirming the Court’s interpretation that the terms “man” and “woman” in the Equality Act refer to biological sex. This means a woman is defined as someone born female and a man as someone born male. Individuals who identify as transgender or who hold a Gender Recognition Certificate are not considered to have changed sex under the Equality Act for the purposes of legal protections related to sex.
This newly-clarified interpretation has wide-ranging consequences, particularly for employers and organisations that provide public services such as gyms, hotels and leisure centres. The EHRC’s guidance primarily addresses the provision and use of single-sex spaces; specifically toilets, as well as washing and changing facilities where required.
The EHCR interim guidance highlights:
- Single-Sex Facilities: Employers are reminded that it is compulsory to provide sufficient single-sex toilets and, where needed, single-sex changing and washing facilities.
- Access Based on Biological Sex: Trans women (biological males) should not be permitted to use women’s facilities, and trans men (biological females) should not be permitted to use men’s facilities, as this would compromise the single-sex nature of these spaces.
- Provision for Trans Individuals: While trans individuals should not use facilities designated for the opposite biological sex, employers should consider providing alternative unisex or gender-neutral facilities to accommodate their needs.
The EHRC is working to update its statutory guidance to reflect the Supreme Court’s judgment and plans to conduct a public consultation in mid-May 2025.
Practical Implications for Employers
As an employer, you should consider the following actions:
- Review Policies: Examine your current policies on single-sex facilities to ensure they align with the legal definitions established by the Supreme Court ruling.
- Facility Provision: Ensure that your workplace provides adequate single-sex toilets and, where necessary, changing and washing facilities based on biological sex.
- Alternative Arrangements: Consider providing gender-neutral or unisex facilities to accommodate trans employees, ensuring that their rights and dignity are respected without compromising the single-sex nature of other facilities.
- Staff Training: Educate HR personnel and management on the implications of the ruling and the EHRC guidance to ensure informed and sensitive handling of related matters.
- Legal Compliance: Stay informed about forthcoming updates to the EHRC’s statutory guidance and be prepared to adjust your policies accordingly.
- Consultation and Communication: Engage with employees to communicate any changes in policies or facilities, ensuring transparency and support for all staff members.
Need assistance?
It’s important to note that while the Supreme Court’s decision provides clarity on the legal definitions within the Equality Act, the EHRC’s interim guidance has faced criticism from some quarters. Some MPs and advocacy groups have described the guidance as “ill-considered and impractical,” calling for its withdrawal. Therefore, employers should approach policy changes with sensitivity and be prepared to adapt as further guidance becomes available.
As the law and debate continue to evolve in this area, employers are advised to ensure they are complying with their obligations. For specialist guidance or assistance in reviewing or updating workplace policies, speak to our experts.
The EHRC interim guidance can be viewed here.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
