For Women Scotland Ltd v Scottish Ministers

The Supreme Court considered whether terms in the Equality Act 2010 (notably "sex", "woman" and "man") are to be read as referring to biological sex or as incorporating "certificated sex" following section 9 of the Gender Recognition Act 2004. The court applied orthodox UK principles of statutory interpretation (see R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd and R (O) v Secretary of State for the Home Department) and examined the text, context and purpose of the Equality Act 2010 in detail.

Key holdings:

• The words "sex", "woman" and "man" in the Equality Act 2010 bear their ordinary (biological) meaning throughout that Act.
• Section 9(1) of the Gender Recognition Act 2004 (the deeming that a person’s gender becomes their acquired gender "for all purposes") is subject to section 9(3) and may be displaced where the terms, context and purpose of another enactment demonstrate that the deeming would make that enactment incoherent or unworkable.
• The Equality Act 2010 contains such internal indicators (for example the pregnancy and maternity provisions, single‑sex services, communal accommodation, sexual orientation provisions and the operation of the public sector equality duty) and therefore operates as a provision within the meaning of section 9(3) that disapplies section 9(1) for the Act’s sex‑based protections.

The court therefore concluded that the Scottish Ministers’ guidance (which treated a person with a full gender recognition certificate as a "woman" for all sex‑based purposes under the Equality Act) was incorrect and allowed the appeal.

This appeal concerned the proper interpretation of the Equality Act 2010 in the context of the Gender Recognition Act 2004 and whether the EA 2010 treats certificated acquired gender as replacing biological sex for the Act’s sex‑based protections.

Background and procedural posture

• For Women Scotland Ltd (a feminist voluntary organisation) challenged revised statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 which treated trans women with a full gender recognition certificate (GRC) as "women" for the Act’s purposes.
• The appellant sought judicial review and a declarator that the guidance was unlawful. The petition followed earlier litigation: the appellant had earlier succeeded in one judicial review that led to the Scottish Ministers issuing fresh guidance. The challenge was heard in the Court of Session (Outer House: Lady Haldane, [2022] CSOH 90; Inner House: reclaiming motion refused [2023] CSIH 37) and was then brought to the Supreme Court with permission.

Nature of the claim and relief sought

• The appellant sought a declarator that the Scottish Ministers’ guidance was unlawful and reduction of the guidance (or parts of it) on the basis that it misinterpreted the EA 2010 and so was outside devolved competence insofar as it altered the definition of "woman" used to give effect to the 2018 Act.

Issues framed by the court

1. Whether section 9(1) GRA 2004 (the deeming that a person’s gender becomes their acquired gender "for all purposes") requires that a person with a full GRC be treated as a woman or man for all purposes of the Equality Act 2010.
2. Whether section 9(3) GRA 2004 permits the EA 2010 to be read so that "sex", "woman" and "man" within that Act retain a biological meaning where the Act’s text, context or purpose require it.
3. Whether the Scottish Ministers’ guidance (treating certificated acquired gender as displacing biological sex for the EA 2010’s sex‑based protections) was lawful.

Court’s reasoning (concise)

• The court applied established principles of statutory interpretation: start with the statutory words in context, use external aids only as secondary indicators, and seek a meaning that is coherent and predictable.
• The court examined the structure and purpose of the EA 2010 and identified multiple provisions that necessarily depend on biological sex (notably the pregnancy and maternity provisions in sections 17–18 and related clauses, single‑sex services and communal accommodation, sexual orientation protections, single‑sex associations and sport). Those provisions would be incoherent or unworkable if "sex" meant certificated acquired gender across the Act.
• The EA 2010 protects sex and gender reassignment as distinct protected characteristics (sections 11 and 7). Gender reassignment protection applies irrespective of possession of a GRC; most trans people do not have a GRC. Treating certificated sex as determinative would create sub‑groups within the trans community distinguishable only by a confidential certificate and would impose impossible practical burdens on duty‑holders under the EA 2010.
• The court concluded that section 9(3) GRA 2004 permits the EA 2010 to operate with "sex" understood as biological sex where that is required by the EA 2010’s terms, context and purpose. Accordingly, the EA 2010 operates as a provision within section 9(3) and disapplies the general deeming in section 9(1) in respect of the EA 2010’s sex‑based protections.

Outcome

• The court allowed the appeal, holding the Scottish Ministers’ guidance unlawful because it treated trans women with a GRC as women for the EA 2010’s sex protections.

The judgment also emphasised that the conclusion does not remove protections for trans people: they remain protected by the EA 2010 under gender reassignment and by principles of perceived and associative discrimination; the decision focuses only on the meaning of sex for sex‑based protections.

Appeal allowed. The court held that the words "sex", "woman" and "man" in the Equality Act 2010 bear their ordinary (biological) meaning; section 9(1) of the Gender Recognition Act 2004 is subject to section 9(3) and may be displaced where another enactment’s terms, context and purpose make the deeming incoherent or unworkable. The EA 2010 so operates and therefore the Scottish Ministers’ guidance treating certificated acquired gender as displacing biological sex for EA 2010 sex‑based protections was incorrect.

Outer House, Court of Session: petition dismissed by Lady Haldane ([2022] CSOH 90; 2023 SC 61). Second Division, Inner House: reclaiming motion refused ([2023] CSIH 37; 2023 SLT 1216). Appeal to the Supreme Court allowed ([2025] UKSC 16). (Earlier related first judicial review decision: For Women Scotland Ltd v Lord Advocate [2022] CSIH 4; 2022 SC 150.)