Equality and Human Rights Commission issues interim note on Supreme Court decision on gender definitions in Equality Act 2010

The Equality and Human Rights Commission (EHRC) has issued an interim update on the practical implications of the Supreme Court's judgment concerning the definition of 'man' and 'woman' in the Equality Act 2010.

The watchdog also announced plans to publish an updated Code of Practice in June, which will detail what the judgment in For Women Scotland v The Scottish Ministers means for public bodies, service providers and associations.

In addition, the body announced a two-week public consultation to be launched in May to understand how the practical implications of the judgment may be best reflected in the updated guidance.

In For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, the Supreme Court unanimously concluded: "The meaning of the terms "sex", "man" and "woman" in the EA 2010 is biological and not certificated sex.

"Any other interpretation would render the EA 2010 incoherent and impracticable to operate. […] For all these reasons, we conclude that the guidance issued by the Scottish Government is incorrect."

In its interim update on the decision, the EHRC noted that "many people have questions about the judgment and what it means for them".

Setting out 'key information' relating to the decision, the update said that the ruling “means that, under the Act a 'woman' is a biological woman or girl (a person born female)”.

It added that, under the Act, a 'man' is a "biological man or boy (a person born male)".

"If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC)", the statement continued.

It went on to note that "a trans woman is a biological man", while "a trans man is a biological woman".

The judgment has implications for many organisations, including workplaces and services that are open to the public, such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services, schools, sporting bodies, and associations, according to the EHRC.

On the topic of toilets, the update said that it is compulsory in workplaces to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed, under the 2010 Act.

It added: "It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets.

"These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act.

"However, it could be indirect sex discrimination against women if the only provision is mixed-sex."

According to the update, in workplaces and services that are open to the public, "trans women (biological men) should not be permitted to use the women's facilities and trans men (biological women) should not be permitted to use the men's facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex".

It also noted that in some circumstances, the law also allows "trans women (biological men) not to be permitted to use the men's facilities, and trans men (biological woman) not to be permitted to use the women's facilities".

"However where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use", it added.

It said that where possible, mixed-sex toilet, washing or changing facilities, in addition to sufficient single-sex facilities, should be provided and that where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men.

Elsewhere, the update said that schools must provide separate single-sex toilets for boys and girls over the age of 8 and that it is "also compulsory for them to provide single-sex changing facilities for boys and girls over the age of 11".

It said that pupils who identify as "trans girls (biological boys) should not be permitted to use the girls' toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys' toilet or changing facilities. Suitable alternative provisions may be required".

Adam Carey