FOR WOMAN SCOTLAND - UPDATE
EHRC faces criticism following the Supreme Court’s Ruling in For Women Scotland v The Scottish Ministers
Following our article last month, HERE regarding the Practical implications of For Woman Scotland v The Scottish Ministers, the Equality and Human Rights Commission (EHRC) has faced criticism over its ability to issue formal guidance on implementing the Supreme Court’s ruling.
Recap
The UK Supreme Court’s recent ruling in For Women Scotland v The Scottish Ministers has sparked significant legal debate. Delivered on 16 April 2025, the judgment clarified that under the Equality Act 2010, the terms “man” and “woman” refer strictly to biological sex, rather than acquired gender.
On 25 April 2025, the EHRC issued an interim update outlining the practical implications of the ruling. Employers and organisations are advised to comply with the law as confirmed by the Supreme Court and seek legal advice where necessary.
"The Supreme Court’s ruling has placed employers and institutions in a difficult position, requiring them to navigate complex legal and ethical considerations. The delayed publication of EHRC guidance has left many organisations unsure about how to implement policies without risking discrimination claims."
Key Aspects of the Ruling
The Supreme Court ruled that the definition of “sex” in the Equality Act 2010 refers exclusively to biological sex, meaning:
A woman is a biological female (a person born female).
A man is a biological male (a person born male).
This clarification has significant implications for employers, particularly in sectors where single-sex spaces, recruitment, and equality measures are in place. Crucially, the ruling confirms that:
A trans woman, even if holding a Gender Recognition Certificate (GRC), remains legally classified as male under the Act.
A trans man, even if holding a Gender Recognition Certificate (GRC), remains legally classified as female under the Act.
These definitions directly impact workplace policies concerning single-sex facilities, employment protections, and diversity initiatives.
EHRC Interim Guidance and Workplace Impact
The EHRC’s interim guidance states that single-sex facilities, such as toilets, changing rooms, and accommodation, must remain restricted to biological sex to comply with the law. This means:
Trans women cannot access female-only facilities.
Trans men cannot access male-only facilities.
If single-sex spaces permit trans access, they must legally be classified as mixed-sex spaces open to all.
However, the guidance also acknowledges specific circumstances where trans individuals may not be permitted to use the facilities of their birth sex. Employers are encouraged to provide sufficient single-sex options alongside mixed-sex facilities to ensure compliance while addressing practical concerns.
EHRC Facing Criticism and Legal Challenges
Since the ruling, the EHRC has faced criticism regarding its approach to issuing updated guidance, particularly concerning:
Delays in Final Guidance
The EHRC promised full guidance by July 2025, but internal disputes and political pressures could delay this further.
Some EHRC officials and Labour MPs have criticised Baroness Falkner’s leadership, arguing her position lacks neutrality.
Concerns Over Consultation Process
The EHRC originally scheduled a two-week consultation on updated gender guidance but extended it to six weeks following pressure from MPs, trans rights groups, and the Women and Equalities Committee.
Critics argue the timeframe remains inadequate for meaningful input from stakeholders.
Legal Challenges Over Interim Guidance
The Good Law Project (GLP) and several individuals have taken legal action, alleging that the EHRC’s guidance permits unlawful discrimination against trans individuals.
Campaigners have described the EHRC’s approach as “stark and needlessly cruel”.
Parliamentary Hesitation in Implementing Guidance
Westminster Parliament has delayed incorporating EHRC recommendations on single-sex spaces, leading to uncertainty for public institutions.
Critics argue that governmental bodies should set a legal precedent by implementing policies promptly, rather than awaiting further consultation.
Concerns Over Enforcement and Proof of Biological Sex
The EHRC’s proposed Services Code of Practice suggests that sports clubs and hospitals may request birth certificates if a person’s biological sex is disputed.
This has raised concerns about privacy and discrimination, with critics arguing that such measures could lead to unnecessary scrutiny and harassment.
Conclusion
The Supreme Court’s ruling has placed employers and institutions in a difficult position, requiring them to navigate complex legal and ethical considerations. The delayed publication of EHRC guidance has left many organisations unsure about how to implement policies without risking discrimination claims.
MPs and campaigners are calling for greater clarity and a balanced approach that ensures compliance with the ruling while protecting all individuals’ rights. If delays persist, government intervention may be required to ensure timely and legally robust guidance.
As the consultation process unfolds, employers must remain vigilant and proactive in adapting policies to reflect the evolving legal framework while maintaining fair workplace practices. We will continue to monitor developments and provide updates as the situation evolves. If you have any questions about how the Supreme Court’s ruling and/or EHRC’s guidance may affect your organisation, please do not hesitate to get in touch with our team.
