EHRC issues interim update following Supreme Court ruling on the definition of 'sex' under the Equality Act
The Equality and Human Rights Commission (EHRC) has published an interim update on the practical implications of the Supreme Court's judgment in For Women Scotland v Scottish Ministers.
The update highlights the key legal consequences for employers, service providers, schools, and associations, while full updated guidance is being prepared.
Key points from the EHRC interim update
The EHRC confirms that following the Supreme Court ruling, for the purposes of the Equality Act 2010:
- 'Sex' means biological sex. A 'woman' is a biological woman or girl; a 'man' is a biological man or boy.
- A trans woman (even with a Gender Recognition Certificate) remains legally categorised as male under the Equality Act; a trans man as female.
The EHRC’s interim guidance also highlights:
- Workplaces must provide sufficient single-sex toilets and changing facilities. Facilities designated for women must be for biological women only, and vice versa for men.
- Public services such as shops, hospitals, leisure facilities, and counselling services are not obliged to provide single-sex spaces, but if they do, access must reflect biological sex.
- Mixed-sex facilities should be provided where possible to ensure that everyone has access to appropriate facilities.
- Schools must provide separate toilets for boys and girls from age 8 and separate changing rooms from age 11, with trans pupils using suitable alternative facilities.
- Membership organisations can limit access to men-only or women-only membership based on biological sex.
The EHRC notes that updated Codes of Practice and guidance will be submitted to the government by the end of June 2025, following a short public consultation.
A sensitive and practical reminder for employers
While the judgment and interim guidance clarify that the protected characteristic of sex refers to biological sex, it remains vital to remember that the protected characteristic of gender reassignment continues to offer robust protections against discrimination, harassment, and victimisation for trans people.
Employers must navigate this area thoughtfully, recognising the potential for strongly held and differing views within the workforce. The interim guidance does not diminish the need to maintain a respectful and inclusive working environment where all employees' rights are upheld under the Equality Act.
We will continue to report on developments in this area.