The Supreme Court’s April 2025 ruling in the case of For Women Scotland v The Scottish Ministers attracted widespread commentary, debate, and confusion. We are now a few months on, and the implication of the decision is no more clear.
The Supreme Court have ruled that when it comes to the provisions of the Equality Act 2010, “sex” means “biological sex”. Notably, this does not include transgender people, even if they have a Gender Recognition Certificate (“GRC”).
In this article, we will attempt to clarify the implications of the decision for the workplace and make recommendations for freelancers and contractors if they encounter issues in light of this.
Background to the case
A Scottish government initiative in 2018 aimed to improve female representation on public boards. At the time the initiative was launched, government guidance stated that transgender women with a GRC were considered to fall within the definition of “women” under the Equality Act 2010, and so could be included in quotas which assessed female representation on public boards.
In 2020, For Women Scotland Ltd, an organisation that campaigns to strengthen women’s rights in Scotland, challenged the government guidance. This resulted in new statutory guidance being issued, defining a “woman” as “a female of any age”. They went further and stated that a trans-feminine person with a GRC is a woman for the purpose of gender representation on public boards.
For Women Scotland Ltd challenged the new statutory guidance in 2022, advancing the argument that the definition of a “woman” under the Equality Act 210 refers to biological sex, and therefore a trans woman with a GRC should not have been included. This was the issue to be determined by the Supreme Court.
The Supreme Court decision
The Supreme Court unanimously allowed the appeal by For Women Scotland Ltd and held that within the Equality Act 2010, the terms “man”, “woman” and “sex” refer to biological sex.
The Supreme Court stated that this decision does not reduce the separate protection which transgender people hold against discrimination, under the protected characteristic of gender reassignment.
EHRC guidance
The Equality and Human Rights Commission have recently undertaken a consultation on proposed changes to their code of practice, resulting from the judgment in question, and will produce a revised Code of Practice in due course.
The Code of Practice will provide formal guidance to service providers, public bodies and associations in relation to their duties under the Equality Act 2010 and how to put them into practice.
In the meantime, they issued interim guidance on the main consequences of the judgment, which can be found here.
This guidance reiterates that it is compulsory for employers to provide sufficient single-sex toilets in the workplace and, where required, single-sex washing and changing facilities. Furthermore, trans women should not be permitted to use the women’s facilities and trans men should not be permitted to use men’s facilities.
The guidance identifies that in some circumstances, the law allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities.
This creates a paradox whereby trans people may not be entitled to use any facilities. However, the guidance is clear that where there are facilities available to both men and women, trans people should not be put in a position where there are no facilities for them to use.
So: where does this leave us?
Implications for the workplace
The recent judgment will require workplaces to review their policies when it comes to toilets, changing rooms and washing areas.
There is a legal obligation for workplaces to provide separate facilities for men and women under the Workplace (Health, Safety and Welfare) Regulations 1992 (“the 1992 regulations”). Any failure to provide single or separate-sex facilities will breach the 1992 regulations and may entitle individuals to bring a claim for sex or religious discrimination under the Equality Act 2010.
Following the Supreme Court decision, the starting point is that transgender people should use the bathroom correlating to their biological sex. However, this could be traumatising for some individuals who may have transitioned after experiencing serious gender dysphoria.
Transgender people are protected against discrimination by the characteristic of gender reassignment. A person with gender dysphoria may also have the protected characteristic of a disability. If a workplace bathroom policy is discriminatory on the basis of gender reassignment or gender dysphoria, then individuals may be entitled to bring tribunal proceedings on this basis.
Self-employed individuals such as contractors and freelancers do not benefit from the same employment rights as employees and workers. However, they may be protected from discrimination under the Equality Act 2010. This is because the act states that those who are under a “contract to do work” are protected from discrimination in the same way as employees.
As such, transgender contractors and freelancers should ask the organisation to identify which of the single-sex facilities they may use. A failure to provide transgender contractors and freelancers with suitable facilities may entitle them to bring a claim to the Employment Tribunal.
As an alternative, the 1992 regulations provide that employers may provide facilities in a room with a lock capable of being secured from the inside, to be used by one person at a time. These can be used by anyone. Transgender individuals may consider asking the organisation to update their facilities to unisex options which are compliant with these standards.
Fundamentally, this is an issue of competing rights. Transgender contractors and freelancers will need to open a dialogue with the organisations they work for, to assess which rights are engaged in each individual case and consider how any policy could impact potential discrimination claims on the basis of:
- Sex,
- Gender reassignment,
- Religion and belief, and
- Transgender individuals should raise the issue of their right to privacy if mandating use of a particular bathroom will have the additional effect of disclosing their biological sex to other employees.
Asking individuals about their biological sex in order to ascertain which bathroom they should use is not explicitly prohibited by law. It would be recommended to engage in an open discussion with contracting organisations to ensure a minimal impact on the rights of transgender contractors and freelancers.
Most importantly, organisations and individuals should strive to treat everyone with dignity and respect. It will also be important to be live to any further updates and guidance from the government and the Equality and Human Rights Commission, as well as carefully documenting meetings and the reasons given for decisions that are made.
