Sex, certificates and statutes: The UK Supreme Court draws a biological line in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16

The GRA 2004 is the statute that established a framework permitting a person aged 18 or over to apply to a Gender Recognition Panel for a Gender Recognition Certificate (GRC) on the basis of “living in the other gender”, with section 9(1) providing that on the issue of a full GRC “the person’s gender becomes for all purposes the acquired gender” subject to section 9(3) which limits this application by any “provision made by this Act or any other enactment or any subordinate legislation.”

The central question was whether the EA 2010 treats a trans woman with a GRC as a woman for all purposes within the scope of its provisions, or whether, when that Act speaks of a “woman” and “sex,” it is referring to a biological woman and biological sex.

The discrimination and fairness dimension

The case lay at the intersection of two protected groups whose interests the EA 2010 simultaneously seeks to safeguard. On one hand stood biological women, whose sex-based rights (to, for example, single sex services, separate spaces, pregnancy and maternity protection, equal pay, and positive action measures designed to redress entrenched disadvantage) depend on the legislature’s ability to identify the group with precision. On the other stood trans people, a population of whom only a small minority hold a GRC and whose dignity, privacy and protection from discrimination the EA 2010 also secures.

The appellant, For Women Scotland Ltd, argued that “sex” in the EA 2010 carries its ordinary biological meaning. The Scottish Ministers contended that a trans woman with a full GRC is, by force of section 9(1) of the GRA 2004, a “woman” for the purposes of the EA 2010.

The law the Court considered

The Court traced the statutory lineage from the Sex Discrimination Act 1975 (the SDA 1975), in which references to “sex,” “man” and “woman” were biological, through the 1999 Regulations (which introduced the protected characteristic of gender reassignment but did not amend the definitions of “man” or “woman”), to the GRA 2004, whose amendments to the SDA 1975 also left those definitions intact.

Section 9 of the GRA 2004 was treated as the pivot. Sub-section (1) effects a change “for all purposes” upon issue of a full GRC; sub-section (3) carves out cases where provision to the contrary is made by the GRA 2004 itself or by any other enactment. The Court accepted that section 9(1) contemplates a change in legal state of affairs but does not require past states to be expunged and noted that the GRA does not compel belief but does require respect for the legal consequences of a GRC where the acquired gender is legally relevant.

Within the EA 2010, the Court focused on section 11 (the protected characteristic of sex), section 212(1) (defining “man” as “a male of any age” and “woman” as “a female of any age”), section 7 (gender reassignment), section 12 (sexual orientation), sections 13(6), 17 and 18 (pregnancy, maternity and breast-feeding), Schedule 3 (separate and single-sex services), Schedule 9 (occupational requirements), Schedule 22 (protection of women), Schedule 23 (communal accommodation), section 149 (the public sector equality duty), and the positive action provisions in sections 158, 159 and 104.

Application of the law to the facts

The dispute crystallised around guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018, which proceeded on the footing that a trans woman with a full GRC counts as a “woman” for the purpose of meeting the representation objective. The Scottish Outer House and the Inner House had both upheld the guidance, holding that section 9(1) is clear and that the GRA 2004 and the EA 2010 could be read harmoniously by adopting the wider, certificated sex meaning.

The United Kingdom Supreme Court took the opposite view. It accepted that section 9(1) presumptively applies but held that the EA 2010 falls within section 9(3) because the words, context and purpose of its provisions are “rendered incoherent or unworkable by the application of the rule in section 9(1).”

The Court demonstrated its reasoning with reference to the following examples:

• Pregnancy and maternity protections target biological women only, and a certificated-sex reading would absurdly exclude a pregnant trans man with a GRC (biologically female, legally male) from automatic protection while requiring him to litigate a gender reassignment discrimination claim.
• References to sexual orientation are coherent only on a biological reading.
• the single-sex services exceptions cannot sensibly turn on a confidential document of which a service provider can have no knowledge.
• Communal accommodation, occupational requirements, the protection of women and equal pay all generate analogous incoherence.
• There is a single definition of “woman” applicable throughout the Act, which must therefore have one consistent and predictable meaning.

Findings

The Court concluded that the words “sex”, “man” and “woman” in the EA 2010 mean, and were always intended to mean, biological sex, biological woman and biological man. A trans woman with a GRC is not a “woman” for the purposes of section 11; a trans man with a GRC is not a “man” for those purposes. The Scottish Government’s Guidance under the 2018 Act was therefore incorrect. The Court emphasised that this conclusion does not strip trans people, with or without a GRC, of EA 2010 protection. Trans people retain protection under the distinct characteristic of gender reassignment and may bring sex discrimination claims based on their biological sex or on how they are perceived.

A conservative literal turn and a South African comparator

The judgment is important for its literal, textual and purposive methodology. Faced with what section 9(1) of the GRA 2004 calls a rule operating for all purposes, the Court could have adopted the Inner House’s accommodating construction. Instead, it preferred the path of treating coherence and workability across the EA 2010’s many provisions as decisive, and of insisting that group based equality rights require groups that are externally ascertainable rather than dependent on confidential certification.

It is an interesting exercise to imagine how South African courts might approach an analogous challenge. South African jurisprudence has, on the whole, been favourable in vindicating the dignity and equality of trans persons. A South African court asked to reconcile these issues in relation to the Employment Equity Act 55 of 1998 (the EEA) might well lean toward a purposive reading that respects an individual’s acquired sex. However, this line of enquiry is sharpened when it comes to affirmative action measures. Designated employers under the EEA are required to collect and report on race and gender representation in the workforce as part of transformation measures aimed at redressing historical privilege and exclusion. Where a worker’s biological sex and gender identity do not align, which is to be reported? The logic of For Women Scotland, that the disadvantage being remedied is one rooted in biological sex and the social structures built upon it, would suggest that biological sex is the relevant reporting data point, at least where the affirmative action purpose is historical redress. A more dignity centred reading may insist that a person’s lived and legally acquired gender is the appropriate identifier. The EEA, as it stands, does not seem to resolve the tension.

The United Kingdom Supreme Court has answered that question, for the EA 2010, by drawing a biological line. Whether South African courts and Parliament would, or should, draw it in the same place is a debate South Africa is yet to have.