The recent court case about transgender people and the definition of ‘sex’:
There has been a lot of media coverage around the recent court case dealing with the issue of transgender people and a definition of ‘sex’ in terms of how UK equalities law is to be applied. This article explains what has been ruled and explains about the further guidance that is expected.
Supreme Court rules on transgender people and the definition of “sex”
In For Women Scotland v The Scottish Ministers, the Supreme Court (SC) considered whether a trans woman with a gender recognition certificate (GRC) is a ‘woman’ under the Equality Act 2010. The judgement affects both trans men and women, but here we’ll use the example of trans women.
Background
The Equality Act protects people from being discriminated against because of ‘sex’, i.e. being a man or woman. There is no definition of ‘sex’ in the Act, except that ‘woman’ and ‘man’ are defined as human males or females. The Equality Act also protects trans people against discrimination because of ‘gender reassignment’. Service providers can provide single sex services and facilities for men and women and exclude trans people from these if they can show objective justification. For example, a gym with separate sex changing rooms can seek to justify excluding a trans woman from the women’s changing rooms.
In summary, there’s no legal certainty as to whether trans people can be either excluded from or included in services that align with their acquired gender since it depends on the individual circumstances.
A Gender Recognition Certificate (GRC) is a legal document that recognises that the holder is considered to be of their acquired gender and allows them to change the sex on their birth certificate.
In this case the Scottish government argued that the definition of ‘sex’ in the Equality Act should include trans people with a GRC. This would mean that a trans woman with a GRC could access women-only services as their sex under the Equalities Act would be that of a woman.
The judgement
The SC ruled that ‘man’, ‘woman’ and ‘sex’ in Equality Act mean ‘biological sex’ and that a trans woman with a GRC cannot automatically access women-only spaces and services. Before this ruling, it was already the case that a trans person (with or without a GRC) could be excluded from a single sex service if there was objective justification. However, an ‘interim update’ issued by the Equality and Human Rights Commission (EHRC) says: ‘trans women (biological men) should not be permitted to use women’s facilities’. The EHRC will publish more detailed guidance in the summer.
The judgement emphasised that the Equality Act continues to protect trans people from discrimination due to their protected characteristic of ‘gender reassignment’.
Tom Togher
April 30, 2025.