What the Supreme Court’s ruling on ‘sex’ means for schools and colleges

Schools and colleges should adopt a careful approach when making changes to policies and practices in response to the recent landmark Supreme Court ruling on the interpretation of the Equality Act 2010, write Jean Boyle and Clare Wigzell.

The recent Supreme Court ruling in the For Women Scotland case on the legal interpretation of ‘sex’ in the Equality Act 2010 will have implications across public life, including in relation to schools and colleges. This has been an evolving and complex area over recent years which, from a legal perspective, intersects multiple areas of law.  

The narrow point, the court decided, was whether the appointment of a trans woman with a Gender Recognition Certificate (GRC) counts as the appointment of a woman in respect of the goal set for some Scottish public authorities of ensuring half of their non-executive members are women. In the court’s judgment, it does not, invalidating the Scottish government’s guidance on that point.

While GRCs are not available to individuals under 18, the ruling brings long-standing issues relating to gender-questioning pupils and students into sharp focus.

There is currently a lack of clear and comprehensive guidance on this topic for schools and colleges in England. The two most recent publications are: the Equality and Human Rights Commission (“EHRC”)’s ‘Technical guidance for schools in England’ (not strictly applicable to colleges but with relevant content), which was revised in 2024, and the DfE’s draft non-statutory guidance on gender-questioning children, published in December 2023. 

The latter – a consultation document issued by the previous government – attracted a significant response and was never finalised. It dealt with practical issues such as name changes, the use of pronouns, single-sex spaces and sport.  

It was broadly in line with the recent Supreme Court judgment insofar as it stated that the legal duties of schools and colleges regarding sex should be framed around biological sex. However, neither the guidance nor the judgment fully consider the interplay between the complex legal issues arising from scenarios schools and colleges regularly deal with.  

Specifically, it is often necessary to balance safeguarding, data rights, regulatory and equality duties for pupils with different protected characteristics, including sex and gender reassignment.

In April 2024, the Cass Review examined gender identity health services for children and young people. It highlighted issues in relation to socially transitioning children and young people of particular relevance to schools and colleges, but it did not offer specific guidance to the education sector.  

Following the judgment, the EHRC said they would work at pace to revise their code of practice in relation to services, public functions and associations. In the last few days the EHRC have issued an “interim update” which confirms that single-sex toilets and changing rooms in schools must be accessed on the basis of biological sex. The interim guidance specifically says that trans pupils must not use toilets based on their gender identity as opposed to biological sex, and says that “suitable alternative provisions may be required” for trans pupils without going into what these might be. It is hoped that the DfE will consider the position carefully in the coming months, and issue practical guidance to schools and colleges. 

In the meantime, there continue to be significant protections for trans people under the Equality Act which are relevant to pupils, students, staff and members of the wider school or college community. 

The Supreme Court’s decision does not change the fact that gender reassignment is a protected characteristic under the Act. The court emphasised this point, stating that trans people have exactly the same level of protection as other groups against discrimination, harassment and victimisation, and therefore the judgment is not a rollback of rights on the scale some have suggested.

In relation to consequences for schools and colleges as employers, there may be some immediate impact. For example, trans employees are no longer able to make an equal pay claim based on the gender stated on their GRC (though they may still do so on the basis of their biological sex).

However, in terms of the practical, day-to-day management of trans employees, little has changed. We therefore urge caution before making significant changes to staff policies or practices. It may be that this case sets a precedent which will impact future judgments or guidance, but for the time being it is unlikely that major changes to working practices are needed.

Schools and colleges know that this is a very emotive issue for trans people and those with gender-critical beliefs (which can also be protected under the Equality Act). It may therefore be sensible to consider offering support and clarity to staff or students who may be directly or indirectly affected by the judgment.

Schools and colleges are advised to avoid a blanket approach, to look carefully at the circumstances of each case as it arises, and to take all relevant legal and practical considerations into account, seeking advice where necessary. 

Jean Boyle is a Partner and Joint Head of Educational Sector and Clare Wigzell is an Associate and Professional Support Lawyer at Stone King.