Gender Recognition

Apr 25, 2025 | News | 0 comments

In the recent case of For Women Scotland v The Scottish Ministers, the Supreme Court considered whether a trans woman with a gender recognition certificate (GRC) qualified as a ‘woman’ under the Equality Act 2010 (EA 2010). In its judgement, the Court concluded that they did not.

The issue arose from a 2018 Scottish government initiative to improve female representation on public boards. The accompanying statutory guidance stated that transgender women with a GRC were, for the purpose of the act, women. This, according to the guidance, brought them within the EA 2010 definition of a ‘woman’. So, for example, those holding a GRC would have the right to access single-sex services provided for members of the opposite (biological) sex (save where the exclusion could be justified).

The Court of Session upheld the guidance. For Women Scotland appealed to the Supreme Court, which allowed the appeal.

The Court held that:

  • The terms ‘man’, ‘woman’ and ‘sex’ in EA 2010 refer to biological sex. Allowing GRC-acquired sex to count would disrupt the statute’s coherence, particularly in areas like pregnancy, maternity, and sex-based protections.

 

  • Giving greater rights to GRC-holders would unfairly divide the trans community and create practical issues for service providers, who cannot lawfully ask if someone holds a GRC.

 

  • The Scottish government’s approach would erode protections for others, such as lesbian-only spaces and associations.

 

  • Many legal provisions — including those concerning single-sex services, communal accommodation, and medical care — rely on a consistent biological definition of sex.

The Court emphasised that this interpretation does not deprive trans people of legal protection. The EA 2010 separately protects those with the characteristic of gender reassignment.

Additionally, trans people have protection against direct discrimination and harassment through discrimination by association or perception. Under section 19A EA 2010, claims of indirect discrimination can also be brought by individuals who share the same disadvantage as a protected group, even if they do not formally fall within it.