For Women Scotland judgment to be handed down next week
The judgment in the matter of For Women Scotland Ltd v The Scottish Ministers will be handed down in Court 1 of the Supreme Court in the morning of Wednesday 16th April 2025.
The hand-down will be live-streamed and available afterwards as a recording on the Supreme Court website. It is likely to start around 10am – typically the judges read out a summary of the judgment which takes 10 to 15 minutes. Copies of the judgment and press summary will be available to download from the website after approximately 10:15am on 16th April 2025.
The court will be open to the public from 9am, with doors to the court closed before 9:45am (another case is due to be handed down first).
Please note that if you are coming to the Supreme Court in person, photos and videos are strictly prohibited inside the courtroom. Political slogans cannot be displayed either inside or on the outside of the Supreme Court.
What is at stake?
The For Women Scotland case concerns the effect of the Gender Recognition Act 2004 on the definitions of “woman” and “man” for the purposes of the Equality Act 2010.
It has already been established by a previous case brought by For Women Scotland that “sex” in the Equality Act does not mean gender identity. This case is only to consider whether having a gender-recognition certificate (GRC) is part of the definition of sex in the act.
- The Scottish Government’s position is that “sex” in the Equality Act 2010 must be taken to mean “sex as modified by a GRC”. This was supported by Amnesty International UK.
- For Women Scotland’s position is that “sex” in the Equality Act 2010 must be taken to have the common-law, biological meaning. Sex Matters and a coalition of three organisations representing the rights of lesbians – Scottish Lesbians, the Lesbian Project and LGB Alliance – intervened in support of this position.
- The Equality and Human Rights Commission (EHRC: the national equality watchdog) agreed with the Scottish Government’s interpretation of the law, but emphasised the problems the law causes for the operation of the Equality Act. It said that Parliament should fix the problem by expressly disapplying the Gender Recognition Act from the Equality Act.
Links to the written submissions and legal commentaries.
What are the possible outcomes?
Although the case is focused on a question in relation to statutory guidance issued by the Scottish Government under the Gender Representation on Public Boards (Scotland) Act 2018, the answer is likely to relate to the Equality Act as a whole, which covers England, Scotland and Wales.
- The Scottish Government wins. The meaning of “sex” in the Equality Act is fixed as including “sex as modified by a GRC”. This means, among other things, that commissioning and planning a genuinely single-sex service becomes extremely difficult, since an equality impact assessment will never consider the needs of (biological) women as distinct from biological men with GRCs.
- The Scottish Government wins but the Supreme Court takes the EHRC position. Its position was that as a matter of law, a GRC changes a person’s sex for the purposes of the Equality Act, but it would be better for human rights and for the comprehensibility and operation of the law if it didn’t. The Supreme Court might say that the two laws together create a terrible muddle that it falls to Parliament to fix.
- The Scottish Government wins, but… The judgment of the Scottish Inner Court against which FWS was appealing held that the meaning of “sex” could vary throughout the act, with the default being “sex as modified by a GRC” and the natural meaning of sex substituted when any other reading would be absurd. This was a surprising ruling, since core terms listed in a law’s “definitions” section are generally held to have a single, fixed meaning throughout. Nevertheless, it is not impossible that the Supreme Court could decide something similar.
- FWS wins, and “sex” in the Equality Act takes its natural meaning. This will mean that sex in the Equality Act has the same meaning as it did in the Sex Discrimination Act 1975. People are protected against sex discrimination based on their actual sex. Provisions against discrimination by perception and association with this characteristic also apply.
What if FWS wins?
If FWS wins the direct impact will be that the Scottish Government will have to amend the Gender Representation on Public Boards (Scotland) Act 2018 to make clear that “women” does not include men with GRCs.
The EHRC will need to rewrite its guidance, including the forthcoming code of practice for service providers, to make clear that sex means sex.
The government, local authorities and all public bodies, universities and schools will need to review their policies to ensure they are lawful, including in line with the public-sector equality duty.
Private-sector service providers, employers and their associations, including charities, will need to review their policies to ensure they are lawful.
What if FWS loses?
It may be open to FWS to take an appeal to the European Court of Human Rights. The grassroots group has not said whether it is considering this option.
In any case, this is not the end of the road for campaigners seeking to establish the natural meaning of sex in law and life. The next steps concerning the GRA and the Equality Act could be political or legal, depending on the judgment.