In the recent case of For Women Scotland Ltd v The Scottish Minister [2025] UKSC 16, the Supreme Court considered the definition of 'sex' in the Equality Act 2010 (the 'Equality Act').
Background
Scottish Ministers published guidance under the Gender Representation on Public Boards (Scotland) Act 2018 (amended following a previous judicial review) which stated that the requirement that 50% of non-executive posts on boards of certain Scottish public authorities be made up of women could be calculated including trans women who had acquired a gender recognition certificate ('GRC').
For Women Scotland, a feminist voluntary organisation which campaigns to strengthen women's rights and children's rights in Scotland, brought a claim for judicial review on the basis that this guidance was outside the competence of the devolved Scottish parliament, which only permitted legislation on equal opportunities for persons with protected characteristics. They claimed that the protected characteristic of sex under the Equality Act refers to biological sex, and therefore that trans women do not share this protected characteristic.
The law
The Equality Act prohibits various kinds of discrimination on the basis of the following characteristics, known as 'protected characteristics':
- age;
- disability;
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- race;
- religion or belief;
- sex; and
- sexual orientation.
The Gender Recognition Act 2004 (the 'Gender Recognition Act') states that when a person has acquired a GRC, 'the person's gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person's sex becomes that of a man and, if it is the female gender, the person's sex becomes that of a woman).'
The Scottish Ministers argued that the effect of this provision is that a trans woman who has acquired a GRC must be treated as being of the female sex for the purposes of the Equality Act.
The central question in the case was therefore whether the meaning of 'sex' in the Equality Act refers to biological sex or a broader meaning, ie whether a trans woman with a GRC is a 'woman' for the purposes of the Equality Act. Neither party sought to argue that trans people without a GRC (the majority of trans people in the UK) were included in this way; it was accepted that they would be treated as their sex assigned at birth for the purposes of the Equality Act.
Judgment
The Supreme Court held that notwithstanding the provisions of the Gender Recognition Act, 'sex' in the Equality Act refers to biological sex and as such that references to man/male refer to someone who is biologically male and references to woman/female refer to someone who is biologically female.
The appeal was allowed and the guidance was held to be unlawful.
Impact for charities
It is important to note, and it was reiterated by the Supreme Court, that this judgment does not remove the protection of trans people under the Equality Act. Trans people are protected from discrimination by the separate protected characteristic, gender reassignment. This does not require a GRC and has been held to include non binary people (see our previous article here). Additionally, it remains unlawful to discriminate against trans people on the basis of their perceived sex; for example if an employer chooses not to hire a trans woman on the basis that it has perceived her to be biologically female, it would be discriminating on the basis of her perceived sex.
Section 193 of the Equality Act creates a specific exception to the Equality Act by permitting the restriction of benefits to persons who share a protected characteristic if:
- this is done in pursuit of a charitable instrument (eg a charity's constitution); and
- the provision of the benefit is:
- a proportionate means of achieving a legitimate aim; or
- for the purpose of preventing or compensating for a disadvantage linked to a protected characteristic.
This is an important exception for charities working with disadvantaged groups, such as women's or LGBTQ+ charities. The Charity Commission and the Equality and Human Rights Commission have both published detailed guidance on the implications of the Equality Act on charities.
The effect of this judgment is that a charity whose governing document restricts its benefit to a specific sex may fall foul of the exception in section 193 if they treat this definition as including trans people who do not share that biological sex. A charity that helps women, as defined in the Equality Act, helps people who are biologically female (which includes trans men and excludes trans women, whether or not they have a GRC).
There are different exceptions that refer to membership of associations, men/women only fundraising and single-sex institutions which will also be relevant to certain charities.
We have previously written about the impact of the Equality Act on single sex schools (see our previous article here). For the most part, this guidance remains unchanged, as in any event it is not available to under-18s to acquire a GRC.
What to do if you are concerned about how this affects your charity
If you are concerned about the impact of the judgment on your charity, the first step will be to review the terms of the relevant charitable instrument and consider its impact. For some charities, trustees may wish to consider whether it is necessary to amend their governing document.
Charities should also consider the other ways in which they might be affected by the judgment, for example if they employ staff, and take advice if required. Acas is currently reviewing its guidance in the light of this decision. The decision may also impact charities which work closely with public sector bodies.
Withers have market leading expertise in charity and equality law. We are on hand to support with any aspects of this issue, including forming a suitable and legally robust policy, and dealing with challenges to, or queries on, an existing policy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
