Why the recent Supreme Court Judgment in For Women Scotland matters to academies and maintained schools and their pupils

The Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers is likely to significantly impact schools, which have been carefully balancing the rights of transgender pupils with their other legal responsibilities, particularly relating to the provision of education, services, facilities, and compliance with their Equality Act 2010 duties. There continues to be no government guidance for schools on this issue.

For English schools, the judgement means:

• Policies and decisions related to sex should be rooted in biological sex where the Equality Act is engaged
• Trans pupils continue to enjoy full protection from discrimination under the Equality Act
• Schools must continue to comply with their anti-discrimination and inclusion duties as public bodies.

As a reminder, pupils who have the protected characteristic of gender reassignment include pupils who are proposing to undergo gender reassignment in adulthood regardless of whether they have received or are receiving any medical treatment.

For the purpose of this update, we have focused on the ruling's key implications for state-funded schools and their pupils, not on whether the judgment was 'right' or 'wrong'. Our recent article provides more information about what this means for school staff.

What are the key action points for schools?

We consider that these are the main action points following the judgment:

• Trans pupils continue to have full protection under the Equality Act and therefore, nothing has changed in relation to the anti-discrimination duties;
• Schools may need to review their policies and practices on school toilets, use of changing facilities and accommodation;
• Schools may need to review how they capture and record data on sex and gender, where applicable;
• Schools may need to rethink how they talk about these issues, fostering respect, inclusion and dignity for all in the school community, including for opposing beliefs;
• Schools must continue to exercise balance and care when coming to decisions on inclusion;
• Training of staff will be important to ensure everyone feels confident and supported in how to apply school policies on sex and gender;
• Robust documenting of decisions on this subject is paramount to provide a clear trail of decision-making processes and reasons;
• Schools will want to engage with governors and parents with consistent messaging that is respectful, inclusive and supportive of the school community as a whole.

Will there be government guidance on the judgment?

Yes. But not yet available.

The Equality and Human Rights Commission (EHRC) has confirmed that it will issue a revised Code of Practice and updated guidance following a consultation in May to consider the judgment's practical implications.

To support organisations in the meantime, the EHRC has published an interim update to highlight the main consequences of the judgment. In respect of schools, it says that schools in England and Wales:

• must provide separate single-sex toilets for boys and girls over the age of 8;
• must provide single-sex changing facilities for boys and girls over the age of 11;
• 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. 

The government has committed to publishing revised guidance for schools this year on supporting gender questioning and trans pupils. In the absence of updated guidance, we have set out the key implications below and what we consider to be the practical impacts for state-funded schools.

What is sex for the purposes of the Equality Act?

The Supreme Court held that the protected characteristic of sex under the Equality Act 2010  refers to biological sex, not self-identified gender - even for individuals with a Gender Recognition Certificate (GRC) (note that GRCs are not available to under-18s).

Practical impacts:

• Schools may lawfully distinguish between boys and girls based on biological sex when applying Equality Act provisions (eg in admissions to single-sex schools, or access to toilets, changing rooms, and sports).
• Schools are not legally required to treat a trans pupil as their self-identified gender when it comes to sex-specific provisions under the Equality Act.

Are there changes to single-sex schools and admissions?

No. The ruling supports the position that single-sex schools (as defined by biological sex) do not have to admit pupils of the opposite biological sex, even if they identify as the opposite gender.

Practical impacts:

• A girls’ school is not legally required to admit a biologically male pupil who identifies as female (and a boys' school is not legally required to admit a biologically female pupil who identifies as a male);
• Single sex schools cannot refuse to admit (or continue to admit) pupils of the same gender because the pupil has a trans identity.

Are there changes to the use of facilities?

No. State-funded schools are already legally required to provide single sex facilities (the requirements for maintained schools are set out in The School Premises (England) Regulations 2012 and academies in Schedule 1, Part 5 of The Education (Independent School Standards) Regulations 2014). These state that schools must provide:

• suitable toilet and washing facilities for the sole use of pupils, including separate toilet facilities for boys and girls aged 8 or over, except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time
• suitable changing accommodation and showers for pupils aged 11 years or over at the start of the school year who receive physical education.

Where unisex facilities are provided, the DfE's Guidance on Advice on Standards for School Premises (March 2015) sets out that "where there is unisex provision, the privacy of the occupant needs to be ensured, and this will be achieved by, for example, having adequate enclosure and full-height door."

Practical impacts:

• The clarification around sex helps schools understand how to apply single-sex facilities policies (eg toilets, changing rooms, and sleeping arrangements on school trips) in a manner which is consistent with biological sex.
• Schools should still treat trans pupils with dignity and respect and may choose to make reasonable adjustments (such as providing separate facilities), though they are not legally required to allow access based on gender identity alone.
• Schools must ensure that separate facilities provided for trans pupils do not have the unintended effect of 'outing' them in school as this could amount to unlawful discrimination and a breach of their privacy rights under the European Convention on Human Rights.

Are there changes to single-sex sports?

No. Schools are permitted under the Equality Act 2010  to provide single-sex sports where participation in any sport or game, or other activity of a competitive nature where the physical strength, stamina or physique of an average girl would put her at a disadvantage in competition with an average boy.

Practical impacts:

• This means that schools are lawfully able to exclude biologically male pupils from girls' teams, even if the pupil identifies as a girl and the same applies in reverse (although this may be less frequently raised).
• When making decisions about whether girls would be at a physical disadvantage, a school will need to take into account the particular group in question, so it is much less likely to justify segregated sports for younger children.
• For non-competitive or low-risk activities eg fitness and basic non-contact games, schools may still offer flexibility or adjustments.
• Where separate teams exist, schools should be mindful that they do not treat those of the opposite sex less favourably eg if a mixed school has a boys-only football team, the school would still have to allow girls equal opportunities to participate in comparable sporting activities.

Are there changes for the curriculum and pastoral support?

Likely yes. While this case does not directly affect curriculum content, it adds legal clarity that may shape how schools teach about sex, gender, and equality under the law.

Practical impacts:

• Where relevant (for example in PSHE or RSHE lessons) it should be clear to pupils that sex means biological sex when discussing rights under the Equality Act.
• Staff should be trained to understand the legal distinctions while also upholding a respectful, inclusive ethos.

Can schools provide positive action programmes?

Yes. However, this must be based on biological sex, eg a STEM club for girls will be restricted to girls whose sex assigned at birth is female.

Does the Public Sector Equality Duty (PSED) continue to apply?

Yes. The PSED (s.149 of the Equality Act 2010) (sometimes referred to as the "general duty") requires state-funded schools to:

• Eliminate discrimination;
• Advance equality of opportunity;
• Foster good relations between those who share a protected characteristic and those who do not.

How the judgment affects PSED:

• When considering how to advance equality based on sex, schools must do so on the basis of biological sex.
• Equality objectives and assessments should now distinguish between sex and gender identity where relevant.
• Schools must also ensure that actions to support trans pupils do not inadvertently undermine the rights or privacy of pupils of the opposite biological sex — a key consideration when balancing PSED obligations.
• When schools are collecting data relating to sex (note it is a mandatory requirement to provide data on sex for all pupils to the Department for Education in the schools census) schools should ensure they are recording the data correctly.

What are the outstanding issues?

Following the judgment, a number of outstanding issues remain to be resolved, such as how schools should accommodate gender identity-based requests (eg, those relating to the use of pronouns and uniforms). It is hoped that some of these issues will be addressed in updated government guidance and guidance from the EHRC.

Schools should avoid adopting blanket approaches to these issues and should consider each case's specific circumstances on its individual merits, taking into account all relevant legal and practical factors, and seeking appropriate advice when needed.

For more information, please contact Miriam Carrion Benitez in our Academies, MATs & Schools team on 07385 667 202, or complete the form below.