What does the For Women Scotland judgment mean in practice? 

The judgment handed down yesterday by the Supreme Court returns the Equality Act to clarity. 

Many organisations have fallen victim to misunderstandings of the law during the past 15 years. They will now need to revise their policies urgently to bring them into line with the Equality Act.  

Among them are the UK government, the Scottish and Welsh governments and all their departments. They include public bodies such as local authorities, police forces and NHS trusts, and regulators such as the Equality and Human Rights Commission, the Health and Safety Executive, the Information Commissioner’s Office, the Charity Commission and the Care Quality Commission. Trades unions will also need to correct their understanding of the law and update their policies. 

Umbrella bodies that have advised sectors such as AdvanceHE, the NHS Confederation, UKActive, CIPD and the National Council for Voluntary Organisations will need to make sure that advice they give their members accords with the judgment.

Here are the general principles they should think about and ten places where urgent action is needed. 

General principles

Organisations shouldn’t panic. 

The key thing they need to remember is that there are two sexes, and human beings cannot change sex. This is not an insight newly discovered by the Supreme Court, and it is not difficult to understand. It is something everyone knows, and until very recently it was not at all controversial. Most people already understand the importance of recognising sex, though some have become too scared to say it in recent years. 

The Equality Act sets out the situations, such as in the workplace and when using services, where individuals are protected against discrimination and harassment related to nine protected characteristics. Among them are “sex” (being a man/male, or a woman/female) and “gender reassignment” (being “transsexual” as the act defines it, now often referred to as “trans”). Another is “religion or belief”.

The Supreme Court ruling sets out that gender-recognition certificates (GRCs) are irrelevant to the Equality Act. 

The Equality Act generally does not tell you what you must do, but what you must not do. For example, the following policies are likely to result in unlawful discrimination and harassment (on the basis of sex and/or belief):

• requiring people to agree with the statement that “trans women are women”
• stopping people from saying that “transwomen are men”, either in general or in respect of specific individuals
• requiring people to announce their pronouns in meetings
• providing communal “female-only” spaces (such as toilets and changing rooms with the word “female” or the “woman” symbol on the door), then allowing men into those spaces
• declaring the use of ordinary words about men and women to be “transphobia”, and disciplining staff for using these words
• putting women (or men) in situations where they must undress in front of members of the opposite sex, or where members of the opposite sex undress in front of them, while telling them that this is a same-sex situation (as in police searching or medical care).

All organisations should carry out an urgent risk assessment to identify policies and training like these, which put them at risk of committing mass harassment or discrimination against staff, customers, patients and others to whom they have legal obligations under the Equality Act.

The policies most likely to create such risks are often described as “trans and non-binary inclusion” or “equality, diversity and inclusion”. They have often been adapted from templates disseminated by activist organisations such as Stonewall that have promoted misunderstanding of the law, or developed by internal LGBT+ networks. 

Such policies need to be withdrawn. 

They should be replaced with policies that are in line with the Equality Act, as now clarified by the Supreme Court. 

The new policies should make clear that: 

• the organisation recognises its obligations not to unlawfully discriminate against or harass people with regards to the protected characteristic of gender reassignment, but also recognises that it cannot force other people to pretend it is possible for people to change sex
• the organisation will not permit anyone to use opposite-sex facilities and services, and (where relevant) will not permit men to compete in women’s sports or apply for women’s awards and other programmes for women. No negotiations will be entered into on this, and there will be no case-by-case assessments or individual exceptions. Where appropriate, unisex alternatives may be offered
• referring to the two sexes, and to the sex of individuals, is necessary when explaining and enforcing sex-based rules, as well as for other reasons such as medical care and safeguarding
• it is unreasonable to take offence at such references. 

Ten places for urgent action

In the coming weeks Sex Matters will be writing to institutions, and providing templates that people can use to write to their own institutions. In particular:

1. NHS bodies should review their policies and ensure that they recognise and record immutable biological sex. This includes in relation to single-sex hospital accommodation (the “Annex B” policy in England), single-sex facilities for staff at work, the recording of sex in NHS patient records and staff records, and the provision of same-sex care. 
2. Police forces should revise their policies and systems to ensure that they record sex accurately and that all policies that make reference to sex use this accurate information, including in relation to searching. 
3. Prison and probation services should review their policies and ensure that all individuals are housed in the correct prison estate for their sex, and (when relevant) on release. Trans-identifying prisoners may be identified as particularly vulnerable, and some may need to be housed separately from the general prison population. 
4. The Department for Education (DfE) must release revised guidance for schools which follows the same principles, and makes clear that schools should not promote unrealistic expectations to children (such as that it is possible to “live as the opposite gender” and expect other people to be forced to pretend that they have changed sex). The Scottish and Welsh governments should also revise their guidance to schools. We published a model policy in 2024.
5. Sports governing bodies should ensure their policies and guidance are based on a clear understanding of sex-based rights. All individuals should be recorded based on their sex. The women’s category is for women and girls only. Depending on the sport, there may be a men’s category or an open category. Communal changing rooms should be single-sex. 
6. The EHRC should urgently develop simple non-statutory guidance reflecting these principles. It should revise its statutory guidance for service providers, associations and employers. 
7. The Charity Commission should write to charities such as Girlguiding and Refuge that have governing documents which include a focus on women and girls, explaining that these groups must be defined in line with the law, not gender self-identification. 
8. The Care Quality Commission (CQC) should revise its policies and ensure that it recognises the two sexes clearly, both within its equality statement and when it inspects healthcare services. These inspections cover whether institutions are safe, effective, caring, responsive to people’s needs and well-led. They also cover whether institutions have effective systems in place to identify possible abuse and to prevent abuse from happening. Organisations that become muddled about the two sexes are likely to put people (especially women, children and elderly or disabled people) at risk of harm. There is nothing in the Equality Act which requires this muddle. 
9. Universities should urgently review their policies, including those concerning toilets and changing facilities, accommodation and sports as well as protections for academic freedom. They should revise policies as necessary to ensure they are not committing mass harassment or discrimination against their students and staff. They have already been put on notice by the Office for Students about academic freedom and freedom of speech in relation to the issue of sex-based rights.
10. All employers, including the civil service, should review workplace policies to ensure they are in line with both the Equality Act and the 1992 Workplace health safety and welfare regulations with regard to single-sex facilities. 

Above all, the government must be absolutely clear that sex means biological sex wherever the Equality Act is applied. We look forward to assisting with this work in order to ensure that all employers, service providers and agencies have the clarity they need to uphold the dignity, safety and privacy of women and girls.