On 16 April 2025, the Supreme Court handed down its decision in the case of For Women Scotland v The Scottish Ministers.
The case concerned “establishing the correct interpretation of the Equality Act 2010…which seeks to give statutory protection to people who are at risk of suffering from unlawful discrimination”. The Supreme Court ruled that for the purposes of the Equality Act, sex is biological. A useful summary of the case was produced by the Supreme Court.
In response, on 25 April 2025, the Equality and Human Rights Commission (“EHRC”) published non-binding interim guidance, which attempted to answer questions about provision of toilets, services and membership. The guidance faced criticism for being rushed and too high level and was updated on 24 June. It was withdrawn in October in the face of further criticism and legal challenge from the Good Law Project.
In its place, the EHRC has produced a draft Code of Practice for Services, public functions and associations following two consultations. The Code was put before the Minister for Women and Equalities for approval on 4 September 2025. The next stage is for the draft code, as approved by the Minister, to be laid before Parliament.
The Charity Commission’s existing Equality Act: guidance for charities (published 22 February 2013) explains the exception in the Equality Act 2010 that allows a charity to discriminate by limiting the group of people it helps. The Guidance currently carries a health warning stating that:
“This guidance predates the UK Supreme Court’s recent judgment in For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent), regarding the definition of a “woman” for the purposes of the Equality Act 2010. The Commission will update this guidance as necessary in due course.”
The former chair of the EHRC, Baroness Falkner, has been vocal in her insistence that the Supreme Court ruling be fully implemented, claiming the Government has ‘let down women’. She has expressed disappointment in the employment tribunal decision in the case of a Scottish nurse, Sandie Peggie, who objected to a transgender doctor using a female changing room. Peggie won a claim for harassment but other allegations of victimisation and discrimination were dismissed.
In a recent interview with Laura Kuenssberg, Mary-Ann Stephenson, new Chair of the EHRC, explained that “generally speaking, we expect people to follow the rules and make sure that there is adequate provision”.
Impact on charities
In the meantime, the judgment has legal force and therefore charities may need to take steps to ensure they are complying with the Equality Act 2010.
On 2 and 3 December 2025, two charities, the WI (the National Federation of Women's Institutes of England, Wales, Jersey, Guernsey and the Isle of Man) and Girlguiding UK (The Guide Association), both made announcements that they would be changing their practices and membership policies to comply with the judgment. In both cases, the charities expressed difficulty in coming to their decisions, taken in light of their stated charitable objectives which refer specifically to ‘women’ and ‘girls’.
Charities which restrict membership to a group defined by one of the protected characteristics (sex, race, disability etc) in the Equality Act rely on s.193 of the Equality Act and the Associations exception in Schedule 16.
The s.193 exception allows charities to provide benefits only to people who share the same protected characteristic (for example sex, sexual orientation or disability), if this is in line with their charitable instrument and if it is objectively justified, or to prevent or compensate for disadvantage. There are a number of charities which are established to provide benefits to ‘men’ (and/or ‘boys’) and to ‘women’ (and/or ‘girls’) which, following the judgment, may find themselves having to consider their own policies and procedures.
One consequence of the judgment is that charities falling within the s.193 exemption, which limit their benefits to people who share the protected characteristic of sex, including their membership, must determine whether they are able to provide services to trans men or women (or whether this will put them in breach of equality laws). If a charity set up for women admitted women and trans women, then it would, following the Supreme Court ruling, be discriminating against men.
Unless charities have good reason for needing to change their rules in light of the case, we consider waiting for the Code of Practice from the Equality and Human Rights Commission and guidance from the Charity Commission to be the most prudent course of action.
If you have any questions about the impact of the judgment on your charity, please get in touch with Neil Burton or Sarah Williams.
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