For Women Scotland: Where are we now?

Nine months on from the Supreme Court’s ruling on the meaning of sex in the Equality Act, we are still without definitive guidance on how it is to be applied in practice.

The For Women Scotland ruling

In April 2025 the Supreme Court ruled that “woman” “man” and “sex” in the Equality Act referred to “biological sex” i.e. sex recorded at birth. It also said that for the purposes of the Equality Act, this could not be changed by obtaining a gender recognition certificate.

So in the Supreme Court’s view, when it comes to access to women only spaces, a trans woman is to be treated as a biological man, regardless of how long-standing and extensive their transition from their birth gender has been. That is a change from how the law was previously widely understood. However, because the underlying dispute was about a relatively esoteric area of equality law (sex-based quotas for the membership of public boards in Scotland) the practical implications of this ruling in a range of different contexts were not worked through.

Guidance from the Equality and Human Rights Commission

Soon after the decision, the Commission published some brief interim guidance which was revised in June 2025, but has now been withdrawn.

What we have instead is draft revisions to the Commission’s Code of Practice for services, public functions and associations on which it consulted in May and June 2025. This was then reviewed (and presumably revised) in the light of the consultation responses and submitted to the Government for approval on 4 September. The text of the Code as submitted has not yet been made public.

The Government has not yet approved the revised Code. If and when it does, Parliament will have 40 days to approve it. 

However the direction of travel is apparent from the consultation draft, which makes it clear that admitting trans women to female only services will mean that they will no longer be treated as single sex services for the purposes of the Equality Act, exposing the provider to discrimination claims. That is a significant change from the current Code.

The Code of Practice on employment is equally out of date, but work has not yet begun on updating it.

The position of employers

The provision of single sex workplace facilities is not directly regulated by the Equality Act. Instead, the legal framework in most circumstances is provided by 1992 health and safety regulations. These require separate “conveniences” for men and women unless they are provided in a fully private room with a lockable door. Similar provision is made for washing and changing facilities, where these need to be provided for the workforce.

It is probably the case that the expressions “men” and “women” in the Regulations need to be interpreted consistently with the Supreme Court’s ruling. But this does not necessarily mean that the suggested approach taken by the Commission in the draft Code of Practice for goods and services can be read across into the employment context.

Recent employment tribunal rulings

There have been three recent employment tribunal rulings on employers’ obligations in relation to workplace facilities in the light of For Women Scotland. Briefly the outcomes were as follows:

• Kelly v Leonardo (24 November): all claims brought by Ms Kelly, who objected to her employer’s policy of allowing trans staff to use toilets aligning with their gender identity, were dismissed.
• Peggie v Fife Health Board (8 December): Mrs Peggie was successful in some of her claims for sex-related harassment when the Board allowed a trans woman to use a women’s changing room for a limited period.
• Hutchinson v Durham and Darlington NHS Trust (16 January): a group of nurses successfully challenged the Trust’s policy of allowing trans women to use women’s changing rooms. Claims for sex-related harassment and indirect discrimination were upheld against the Trust.

These brief details do not reflect the crucial importance of context when adjudicating on these claims, particularly in relation to changing rooms. Also, while illustrating the relevant legal issues in play, they are not binding on other tribunals. We will need to wait for a ruling from the EAT for that, and are unlikely to get one until next year.

Conclusion

It was clearly important for employers not to act hastily in response to the Supreme Court’s Ruling. However, we may now have reached the stage where the risks of doing nothing to address policies that could be inconsistent with the Supreme Court’s ruling outweigh the benefits of waiting for official guidance.

In that context it is worth re-iterating that all these rulings make it clear that the Equality Act’s protections for trans people remain in place. In many workplaces the potential difficulties thrown up by for Women Scotland can be navigated by ensuring that there are sufficient unisex toilets.

Changing rooms are likely to give rise to more complex issues, since their layout normally provides less privacy than toilets. It does seem that workable solutions were found in the Peggie and Hutchinson litigation, though unfortunately too late to avoid claims.

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