From the desk of I M Iqbal

For Women Ltd v the Scottish Ministers- Explained

On Wednesday 16th April 2025, the UK supreme court ruled in a case about the meaning of the word sex, woman and man in the Equality Act. The court ruled the meaning of the word sex in the Equality Act is biological. Therefore trans people including those with gender recognition certificates are not their acquired/ certificated gender for the purposes of the Equality Act. This post aims to explain the reasoning in the courts judgment in the hope this will combat the large amount of misreporting by the press about what this judgment means. It also discusses the recent announcements by the Equality and Human Rights Commission and British Transport Police about their interpretation of this judgment and why their interpretation may be wrong.

This judgment was primarily focused on the rights of trans people with gender recognition certificates. Office of National Statistics estimated that there are about 48,000 trans men and 48,000 trans women in England and Wales 1. Scotland’s census 2022 found that 19,990 people were trans,2 compared with a total of 8,464 people who have ever obtained a GRC as at June 2024 3.

A quick point on the language used in this post:

The Equality Act and other law discussed in this post uses terms which are offensive because they do not reflect the language trans people would use to refer to themselves. Where such language is used in this post, it is for legal accuracy alone. Outside of such circumstances language which is accurate has been used.

The terms sex and gender are used alternatively in the EA and other relevant laws. As a result the UKSC judgment also alternates between these terms. I have tried to avoid using the term gender unless I am discussing a part of the law which uses the term gender for clarity. The only exception is the term acquired gender which I define in the section below.

The glossary of terms below contains imperfect definitions and may not reflect the way trans people prefer people discuss their gender. Those terms have been defined to provide clarity as to specifically who is being described and reflect the language used by the court. I have tried to use the correct language where possible- so long as it does not produce confusion.

Glossary of terms used in this blog post:

How did this case get to the UKSC:

This case originated in Scotland as the result of guidance issued by the devolved Scottish government. Powers that the UK parliament has not given the devolved Scottish government the power to legislate are called reserved powers. S.29 of the Scotland Act 1998 states that equal opportunities law is a reserved matter. Since 2016 there has been an exception for positive action (action taken to improve equality) with regard to appointments to public bodies4.

S.1 of The Gender Representation on Public Boards (Scotland) Act 2018 states 50% of not executive members of a public board must be women. S.2 defined woman as:

“a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”.

For Women Ltd challenged this definition. The Second Division of the Inner House of the Court of Session ruled that “transgender women” is not a protected characteristic under the EA. As a result, this definition of woman encroaches on the definition of woman in the EA and therefore the nature of protected characteristics which is a reserved matter for the UK parliament. Therefore, the Scottish government has legislated outside its competence and had violated the Scotland Act 1998. This made this definition unlawful.

This led Scotland’s government to issue statutory guidance to replace S.2 of the 2018 Act. The guidance stated a person who had been issued with a full GRC and her acquired gender was female, had the sex of a woman at law so that her appointment would count towards the achievement of the 50% objective. This was in line with EHRC guidance at the time.

For Women Ltd entered into correspondence with the Scottish government prior to bringing this case. A letter from the Scottish government quoted from the EHRC guidance:

“Under the Equality Act 2010, ‘sex’ is understood as binary, being a man or a woman. For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate. A trans person can change their legal sex by obtaining a Gender Recognition Certificate. A trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate for the purposes of the Act.”

The Appellants challenged this guidance as outside the powers of the Scottish government because it legislates on a reserved matter: Equal Opportunities. They argue the definition of Sex in S.7 of the EA is biological and therefore the definitions of man and woman do not include trans people with GRCs. Therefore, the guidance by the Scottish government is unlawful.

The Outer House ruled S.9(1) of the GRA 2004 changed the sex of a trans person for all purposes from their biological sex to their certificated sex. Therefore, sex in the EA included certificated sex therefore a trans woman with a GRC was a woman for the purposes of the EA 20105.

The Inner House heard the appeal and agreed with the Outer House.6 They found that the terms sex, man and woman in the EA could have a biological meaning or could have a wider meaning including both cisgender people and trans people with a GRC. According to their decision, both cisgender women and trans women with a GRC would be women under the EA. They found there was nothing in the EA that mandated a conclusion that sex was biological. The only section that required a biological definition of the word sex was the pregnancy and maternity section of the EA. In the remainder of the act, the Inner House ruled trans people with GRCs could be considered as part of their certificated sex.

For Women Ltd, then appealed to the UKSC.

A quick point on interveners:

Several parties intervened in the case including the EHRC, the LGB Alliance, Sex Matters and Amnesty International. I am going to briefly summarise their arguments below.

Sex Matters is a charity whose charitable purpose is to promote human rights where they relate to biological sex. They argue the definition of sex in EA has a biological meaning because trans people’s rights under the EA are protected under the characteristic of gender reassignment and a definition of sex under the EA that includes trans people with GRCs would produce irrational results. The LGB alliance, Scottish Lesbians and the Lesbian Project also collectively argue that the meaning of the word sex is biological.

The EHRC explained their view that the terms sex, man and woman in the EA include those with certificated sex via a GRC. They conceded this causes problems in 4 areas under the EA and argue parliament should resolve them urgently. These 4 areas are:

Amnesty International argued that human rights principles demonstrate that sex has to include those with a certificated sex because they hold a GRC.

Many people including Victoria McCloud7 (the First Trans judge in UK history, now retired) and Jolyon Maugham8 (the founder of the Good Law Project) criticised the courts decision to allow interveners in favour of a biological definition of sex but did not allow trans people or an organisation representing trans rights to intervene. Ms McCloud herself tried to intervene and her application was rejected by the UKSC.

How do courts decide what a term means- the law on statutory interpretation:

There are longstanding principles that govern how words and provisions in statutes are interpreted in UK law. These principles are briefly explained below:

In R(o) v Secretary of state for the Home department9 the court stated:

In R(Quintavelle) v Secretary of State for Health13 The court stated:

“The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

At law, there is a presumption that if the same word is used in the same statute, that it has the same meaning. The weight given to the presumption depends on the context14 and the presumption may be stronger if the word is defined in the act15. If parliament intended the same word to have a different meaning this can only be established by examining the context of the section at issue and the context of the act as a whole.

Historical context and a brief introduction to the Equality Act other relevant laws:

SDA 1975 and the Equal Pay Act 1970:

These acts prohibited discrimination based on biological sex. S.1 of the SDA defined discrimination against a woman and S.2 discrimination against a man with a caveat that special treatment of women due to pregnancy was allowed and not discrimination. There were different provisions for employment and non employment discrimination. There were exceptions to discrimination in specific cases such as: genuine occupational qualification (GOQ), single sex spaces, physical contact between people and sports. The Equal Pay Act ensured equal pay between biological men and women.

Sex Discrimination (Gender Reassignment) Regulations 1999

In both Corbett v Corbett (otherwise Ashley)16 and R v Tan17, it was established that a transgender person’s sex could not be lawfully changed to their acquired gender. In P v S, the European Court of Justice determined that the Equal Treatment Directive issued by the EU also prohibited discrimination due to gender reassignment. The SDA did not allow this therefore the UK adopted the 1999 regulations.

The regulations inserted S.2A into the SDA which prohibited discrimination on the grounds that a person intends to undergo, is undergoing or has undergone gender reassignment and a definition of gender reassignment was inserted into S.82 of the SDA. Discrimination with respect to pay and pensions was prohibited as well. There were certain exceptions on the ground of a genuine occupational qualification some of which applied to all trans people and others applied to trans people who had yet to go through or were in the process of going through gender reassignment. The 1999 regulations did not amend the definition of man or woman in S.1 or S.2 of the SDA.

GRA 2004:

This act was passed due to Goodwin v UK18 where the court ruled that it was a breach of Ms Goodwin’s article 8 ECHR rights for there to be no process by which she could legally change her sex to her acquired gender. the ECtHR focused on the fact that the NHS recognised gender dysphoria as a condition and provided Ms Goodwin with surgery “with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs”19. It was clear there was nothing “arbitrary” in the decision to undergo gender reassignment and it was no longer acceptable to deny trans people recognition of their acquired gender at law.

The Goodwin Judgment was considered by the House of Lords (now known as the UKSC) in Bellinger v Bellinger and concluded that the current law was incompatible with the Goodwin case and the ECtHR precedent on the meaning of Article 8. Therefore they made an declaration of incompatibility stating UK law did not comply with Article 8.

This led to the GRA being passed which established a legal framework for a trans person to change their sex to match their acquired gender. It contained the following provisions:

An application for a GRC is private and if a trans person received a GRC it is confidential. It is a criminal offence to disclose GRC status with some exceptions. The certificate must state that the acquired gender is male or is female. Non binary certificates do not exist even where the applicant has a certificate declaring them to be non-binary issued in another country. A full GRC is issued if the applicant is unmarried and a partial one if they are married. If they divorce their spouse, a full GRC is then issued.

S.9 of the GRA states:

There are some specific exceptions in the GRA: for sports, status as a parent (At law, a mother is the person who gave birth to the child irrespective of the mothers gender) and allowing people with GRCs to be convicted of or be the victim of a gender specific offence. The GRA did not amend the definitions of woman or man in the SDA.

Case law on the GRA and Courts preliminary ruling on how the exception in S.9(3) operates:

For Women Ltd argued that S.9(1) of the GRA was no longer useful because the problems encountered by trans people had been resolved by other laws. The court rejected this argument because S.9(1) still has a practical effect on individual rights and freedoms as well as recognising trans peoples personal autonomy and dignity.

The exception in S.9(3) can apply even where it is not expressly stated within a statute and to circumstances where the exception applying is not a necessary implication of the law. There was a dispute between the parties to the case as to whether S.9(3) only took effect on laws passed after the GRA or could effect laws that existed before the GRA was passed. The court ruled that it could take effect on laws that had passed prior to the GRA including the SDA. Limiting the application of S.9(3) could produce adverse effects on the rights of trans people. For example, a trans person in the same position as Mr McConnell (a trans man who gave birth to a child via fertility treatment and brought litigation about his parental rights) would be classified as a father if the exception did not apply. This would be problematic because the legislation that governs the legal use of fertility treatments uses the word woman so his treatment might have become unlawful if S.9(3) did not apply. Furthermore, the sperm donor would also gain parental rights over the child if he was not classified as a woman and mother of his child for the purposes of this legislation.

Different laws have different purposes and therefore the meaning of the words sex, man and woman will need to be different to ensure all of the laws that use those words effect rational results. As a result, the court declined to create a test for determining whether those words were biological in nature (so S.9(3) applies) or whether they had a wider meaning instead which would include those with a certificated sex via a GRC.

The purpose of the EA:

The EA intended to “reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics”. It defined the characteristics that are protected as well as the forms of discrimination that are prohibited. Some protected characteristics have specific sections outlining particular forms of discrimination that can only occur against those with that characteristic. It also has specific sections on workplaces (including equal pay), service providers, property transactions education, associations, the public sector equality duty and exceptions to the prohibition on discrimination.

Outline of the EA:

The Equality Act is concerned with discrimination against individuals and groups:

For example, direct discrimination claims (S.13) are designed to protect the individual. If a person was to make a S.13 claim, they would need to provide a comparator (real or hypothetical) that does not have the protected characteristic and is identical to the claimant in all other respects. This allows the court to examine whether it is the protected characteristic or something else that caused the alleged discrimination. A comparator is not neccessary for pregnancy/ maternity claims and favourable treatment due to pregnancy is not relevant for the purposes of discrimination. Both cisgender people and trans people can make claims under S.13 but if the trans person is alleging the discrimination is due to absence from work, this is covered by S.16 instead. Perception based discrimination, discrimination because someone believes you have a protected characteristic is also prohibited.

Indirect discrimination, equal pay claims, positive measures and the PSED are designed to protect people with protected characteristics as a group: - S.19 operates to prohibit a seemingly neutral policy which has a specific discriminatory effect on a group of people because of there protected characteristics. “It must be possible to reach general conclusions or make general assumptions about a group with a particular protected characteristic such that an employer or other duty-bearer ought reasonably to be able to appreciate that any particular PCP applied to their workforce or service users may have a disproportionately adverse impact on the group.” S.19A also extended this protection to people who do not have a protected characteristic but experience the same negative effect as a person with a protected characteristic would. This is essentially a version of perception based discrimination. - Positive measures to mitigate disadvantage faced by people with protected characteristics as a group are permitted under S.188/9 of the EA so long as they are proportionate. - S.149 creates specific duties on public bodies. I return to the detail of this duty below. - S.64 allows for equal pay claims but required a real life comparator without the relevant protected characteristic.

The courts ruling on the key Q: Does the definition of sex in the EA include trans people with GRCs:

Consistency is important for those that bear duties under the EA and is especially important with regard to provisions that protect people with protected characteristics as a group and the PSED. The EA was enacted with full knowledge of the GRA because it is mentioned in several sections of the EA. The fact the word biological is not included in the definition of sex in the EA is not indicative that parliament meant the word sex to include certificated sex. The question the court had to answer was can the word sex coherently include those with certificated sex? If not the word sex must have a biological meaning. If reading the word sex to include those with certificated sex would produce irrational results, that is unlikely to have been intended by parliament.

It is clear that before the GRA was passed, sex in the SDA meant biological sex. After the GRA was passed, sections were added to the SDA but it did not change the definition of sex. However, given that the EA was meant to both reform and replace the SDA, the focus must be on the EA despite the SDA and amendments to it providing relevant historical context. The court ruled that sex has a biological meaning because there is no indication that parliament intended the word sex to include those with a Certificated sex. Also, it is practically impossible for sex based rights protections to be regulated by referring to categories of people that can only be established if someone had knowledge of a confidential certificate. A wider definition would have meant the following: - Trans women with GRCs and cisgender women would be women under the EA to the exclusion of trans men with GRCs. - Trans men with GRCs and cisgender men would be men under the EA to the exclusion of trans women with GRCs.

This would produce irrational results- I return to the nature of these irrational result in the next section. But first I discuss the Scottish governments argument that there is a variable definition of sex in the EA.

Why can the EA not have a variable definition of sex:

A variable definition would mean that sex took a biological meaning where their was necessary to ensure rational results but has a wider meaning where this was not necessary. The Scottish government made this argument by saying there was nothing in the EA that prohibited such a definition of sex. The court rejected this argument because it would go against the principle that the law must have a consistent meaning to provide certainty. The court stated the EA has a single definition of sex and there is nothing to indicate parliament intended the term sex to have two meaning so there is insufficient evidence to rebut the presumption that sex has a single meaning in the EA. If there was a variable definitionn, trans men with GRCs (some of whom may still be capable of becoming pregnant) would not be protected under the pregnancy and maternity protections of the EA but trans women with GRCs would (most of whom are not capable of becoming pregnant). Instead trans men who got pregnant would have to claim under gender reassignment which is clearly not what was intend by parliament. The same would apply to equal pay protections for maternity, insurance and health and safety exceptions permitting discrimination. This is an example of an irrational result and a court cannot endorse a interpretation of a law which would produce an irrational result

Irrational results that would flow from a wider definition of sex:

There are a number of irrational results that would result from a wider defintiton of sex. One of which is the effect on the pregnancy and maternity protections and exceptions permitting discrimination due to pregnancy and maternity which have been discussed above. The EHRC recognised a number of these difficulties in their submission. Below, I discuss other examples given by the court:

Trans people with GRCs would have greater protection than trans people without GRCs:

The common factor between all trans people which is identified under the definition of gender reassignment in S.7 of the EA is transitioning to an acquired gender, not whether they are trans man or trans woman. The definition does not depend on having a GRC instead it offers protection to trans people once they intend to, are or have undergone any step to live as their acquired gender. Duty bearers cannot ask if a trans person has a GRC, therefore if a wider definition of sex was used, it would be impossible to establish who is a woman and who is a man for the purposes of the EA. A wider definition of sex would also create inequality between trans people with GRCs and those without which is not intended by parliament particularly because a GRC is confidential. the intention was all trans people have the same legal protection under the EA regardless of whether they have a GRC.

Difficulties with the definition of sexual orientation:

The definition of sexual orientation in S.12 of the EA uses the word sex to define same sex attraction, opposite sex attraction and attraction to persons of both sex. If a wider definition of sex is used, this definition becomes incoherent because it would mean trans women with GRCs who are attracted to women would be lesbians for the purposes of the EA. Again, it would become impossible for duty bearers to establish who is a lesbian because GRCs are confidential. Furthermore, Schedule 16 paragraph 1 of the EA allows association to restrict membership, access to benefits, services and facilities, and access to guests to “persons who share a protected characteristic”. The court stated if the definition of Sex in the EA were to be wider, it would be unlawful to exclude trans women from such spaces which could lead to some lesbians not using lesbian-only spaces. The Scottish ministers were not able to adequately address this potential effect in their submissions.

Difficulties with marriage/ civil partnership characteristic:

The definition of civil partnership in the EA explicitly refers to a “relevant gender change” which refers to a trans person with a GRC. This means this section is unlikely to also include a wider definition of sex that includes those with a GRC implicitly, because where the legislators thought GRC status was relevant for their intended purpose, they explicitly mentioned it.

Difficulties with single sex services and facilities:

Schedule 3 of the EA contains exceptions to the prohibition on discrimination to allow for single sex facilities and services. Some exceptions permit conduct which would otherwise be gender reassignment discrimination. Therefore the intention must have been to exclude both trans people with GRCs and those without GRCs. If not, this would create unequal rights between those with a GRC and those without a GRC.

Examples of such spaces include changing rooms, homeless hostels, segregated swimming areas and medical/ counseling services provided to either men or women. For this to be permissible, it must be proven providing a service for all would be less effective. If a wider definition of sex were used, this would be difficult to prove again because duty bearers cannot know who holds a GRC and who does.

With regard to single sex services, “it is hard to see how the condition that only persons of one sex have need of the particular service can be satisfied if each sex includes those with GRC’s who are a different biological gender but those with the same biological gender who also have a GRC.”

The same would be true of the provision of Schedule 3 which allows for single sex services where someone might reasonable object to combined services because the reasonableness of an objection cannot be based on GRC status because a GRC is confidential. The same is true of provision of single sex services where physical contact is required.

With regard to communal accommodation, this would undermine the expectation of reasonable privacy between the sexes and it would be hard to justify permitting trans women with GRCs into womens accommodation but exclude trans women without GRCs for example.

Single sex higher education institutions are permissible under te EA and again, it would be difficult to justify trans men with a GRCs being permitted to attend mens only institutions but not trans men without GRCs.

The court also highlighted the difficulties for charities if a wider definition of sex was used because there is an exception in S.193 of the EA allowing them to provide services to one sex. This may also pose problems with charity law if a charity’s charitable purpose was tied to provision of services to one sex or another because again, they would be unable to ascertain who is entitled to their assistance because they cannot know if a trans person has a GRC. It would also be difficult to justify excluding trans people without GRCs from their assistance.

This would also impact the sports exception in the EA. Currently this is a partial exception for gender reassignment discrimination if exclusion is necessary for fairness. This only applies to sports based on ‘physical strength, stamina or physique of average persons of one sex would put them at a disadvantage as competitors in a particular sport when compared to average persons of the other sex.’. If a wider definition of sex were used, a trans woman with a GRC could still be excluded if it was in the interests of fairness and safety to do so but a trans woman without a GRC could be excluded as a biological male. This again would create differences in the protections offered to trans people with and without a GRC. It would also be impossible for sporting bodies to do this because they cannot ask whether a trans person has a GRC.

There is also a general exception in the EA for seperate services for people of each sex, provision of seperate and different services for people of each sex and provision of services to one sex. This is applicable so long as it is a proportionate means of achieving a legitimate aim. This would allow trans men to be excluded from women only services. Again, if a wider definition of sex was used, it would be impossible to determine if the exception applied because GRCs are confidential.

Difficulties with the PSED and provisions permitting positive action:

The PSED required organisations subject to the duty to collect data about those that engage with them who have protected characteristics and take steps to improve equality in several specified ways.

Difficulties with data collection:

Data collection would be difficult because:

Difficulties with provisions that require duty holders to have action to promote equality under the PSED:

The difficulties with data collection would affect the ability of duty holders to promote equality as required under the PSED.“The distinct discrimination and disadvantage faced by women as a group or trans people would simply not be capable of being addressed by the PSED because the group being considered would not be a group that, because of the shared protected characteristic of sex, has experienced discrimination or disadvantage flowing from shared biology, societal norms or prejudice.”. The needs of transgender people and cisgender people are different and should be considered differently or the PSED would be less effective.

Difficulties with positive action to promote equality as permitted under S.188/9:

The same difficulties described above under the section titled difficulties with provisions that require duty holders to have action to promote equality under the PSED also apply here. Duty holders would not be capable of ensuring their positive actions address the needs of all trans people. For example, trans women with GRCs would be covered by positive measures taken to ensure equality under sex and under gender reassignment whereas trans women without GRCs would only be covered by positive actions taken under gender reassignment.

Why this judgment does not affect the ability of trans people to make EA claims:

This judgment does not preclude discrimination claims by trans people and the court clearly outlined how the law applies to such claims in light of this judgment. Any right that trans people had prior to the judgment being delivered that is not mentioned below remains unaffected by this judgment.

Direct discrimination:

Trans people can still make claims if they experience direct discrimination because they are perceived to be a cisgender person. This would be a claim under the sex characteristic of the EA. The same is true of discrimination by association. Where a Trans persons biological sex can be perceived and they are directly discriminated against as the result, they can still make a discrimination claims under the Sex characteristic of the EA.

Where a policy or rule confers benefit but also contains criterion that is in effect a sex based criteria, that will be directly discriminatory20. For example, historically the pension age for men and women was different. Therefore if a benefit is given at the pension age for men not women, that would be discriminatory. A certificated sex reading of sex in the EA 2010 would have the effect of preventing that principle from applying if the criterion is one that only members of one biological sex would have. This is because it would not be indistinguishable from people in the relevant sex because not all members would have that biological characteristic. Such a claim would have to be made via indirect discrimination which has a defense. The GRA does not explicitly repeal this protection and there is nothing that suggest parliament would have intended this.

Indirect discrimination:

S.19A of the EA extends indirect discrimination protection to persons who do not share the same protected characteristic but suffer the same disadvantage as those who do. Therefore a trans woman can still make claims if they are similarly effected by a neutral policy which has a discriminatory effect on cisgender women.

Harassment:

Harassment required a claimant to prove a link between the pattern of unwanted conduct and the relevant protected characteristic. Claimants must also prove the conduct “violates dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”21.If a trans woman were to be harassed because she is percieved to be a woman she can still claim for harassment on the basis of perceived sex. She may also be able to claim on the basis of gender reassignment.

Equal pay:

An equal pay claim requires unequal pay for the same/ similar work because of a sex. An actual comparator of the opposite sex is required for such a claim.

Under a biological definition, a trans man with a GRC would not be able to bring a equal pay claim because he cannot rely on a male comparator because he is legally male. This is because S.64(1)(a) requires an actual comparator of the opposite sex to be identified. However, a trans man without a GRC would not have this problem because he is biologically female therefore can use a male comparator in such a claim.

The same would be true for trans women, a trans woman with a GRC could not bring an equal pay claim because she cannot identify a comparator of the opposite sex but a trans woman without a GRC can. The court noted this was odd but the issue the issue would still be present if a wider reading of sex was adopted because S.64(1)(a) expressly requires a comparator of the opposite sex.

Outcome:

The definition of sex in the EA is biological. As a result, the guidance issued by the Scottish government that defines women as including trans women with GRCs is unlawful because it creates law in a area reserved for law making by the UK parliament. Nothing in this judgment precludes the Scottish government from issuing new guidance with quotas for the representation of both cisgender women and trans women separately.

Effect of EHRC’s statement on enforcing the judgment and its effect on trans peoples ability to use single sex facilities of their acquired gender/ certificated sex:

Many trans people have expressed concerns about how this judgment will affect their ability to use the single sex facilities of their acquired/ certificated gender. Particularly because the ECHR announced they would be enforcing the judgment with regard to NHS facilities.This which would involved mandating trans people using the facilities asssigned to their biological sex.22 British Transport Police also announced that trans people would be searched by officers with the same biological sex.23

Jolyon Maugham tweeted about this very issue following the UKSC judgment being handed down.24 He highlighted that the high court has previously ruled that excluding trans women from single sex spaces would be unlawful unless it could be justified. Justification means it must be a proportionate means of achieving a legitimate aim. The reason for the high court ruling is obvious: excluding trans women is likely to have little effect on those who are not trans but a significant effect on those who are.25. This principle applies whether a trans person has a GRC or not because the high court case was based on the definition of gender reassignment in the EA and which covers all trans people. The same is likely to be true of police searches. Given the sensitivity of such searches, the harm to a trans person would be so severe that this policy is unlikely to be proportionate. Mr Maugham concluded that it is unlikely that any significant changes to the law will take place as the result of this judgment.

Mr Maugham did qualify his conclusion however by stating that he has heard from lawyers working in equality law that trans claimants cases may not be successful in circumstances where non trans claimants would be successful. This is likely the product of social stereotypes about the trans community and the failures of the enforcement mechanisms under the EA as a whole. Both factors have an effect on claims based on other characteristics that are protected under the EA but may be more pronounced due to the small number of trans people in the UK. That however, is the subject of another blog post that I intend to write in the future.

Authors opinion:

I have tried to keep my opinion of this judgment out of my summary and discussion of the legal issues in this post so it its helpful to as many people as possible without my opinion clouding their perception of the case. I share it now, only for completeness:

The tone of this judgment, the qualification at the beginning stating this ruling only applying to the EA, the fact the judges state this judgment is not taking a position on the wider debate about the meaning of sex suggests to me the court was aware this judgment could be abused. In addition, the judges made sure to clarify the rights of trans people to make EA claims as described above. This indicates that if this judgment is abused and a legal claim is brought by a trans person, the courts will declare such conduct to be unlawful. I am not sure how much comfort this will be to the trans community who are watching people celebrate this judgment by making false claims about what it means with regard to the EA and the law in general. But, I hope a complete understanding of this judgment provides you with a greater understanding and perhaps more reassurance than you had prior to reading this post.

Regards

IMI

Edit 23/05/2025: Baroness Brenda Hale, former head of the UK supreme court, was asked about this judgement recently and she stated that she believes it is being misinterpreted. I suspect this is what the current UKSC judges were concerned about as mentioned above. She also highlighted that a biological definition of sex without clarifying what that means may itself cause issues in the future. Noteably she stated:

’there’s nothing in that judgment that says that you can’t have gender neutral loos, as we have here in this festival.” She applauded the fact that Charleston’s organisers went ahead with that decision “despite the fact that there are people saying that you can’t do that”.The judgment “says nothing about that”, she added. “It’s for other people to work out the other parts of the Equality Act, which permit but do not require services to be provided differently for people according to sex.’26

sources

Link to the summary judgment given by Lord Hodge on behalf of the court: https://www.youtube.com/watch?v=XxHtbTragtg Link to the press release: https://supremecourt.uk/cases/press-summary/uksc-2024-0042 Link to the judgment: https://supremecourt.uk/cases/judgments/uksc-2024-0042

  1. https://www.ons.gov.uk/peoplepopulationandcommunity/culturalidentity/genderidentity/bulletins/genderidentityenglandandwales/census2021 ↩︎

  2. https://www.scotlandscensus.gov.uk/2022-results/scotland-s-census-2022-sexual-orientation-and-trans-status-or-history/ ↩︎

  3. https://www.gov.uk/government/statistics/tribunals-statistics-quarterly-january-to-march-2024/tribunal-statistics-quarterly-january-to-march-2024 ↩︎

  4. https://www.legislation.gov.uk/ukpga/1998/46/section/29 ↩︎

  5. https://www.scotcourts.gov.uk/media/lkkd0t1r/court-of-session-petition-by-the-scottish-ministers-for-judicial-review-of-the-gender-recognition-reform-scotland-bill-prohibition-on-submission-for-royal-assent-order-2023-made-and-laid-before-the-uk-parl.pdf ↩︎

  6. https://www.scotcourts.gov.uk/media/l1imtxvx/court-of-session-judgement-reclaiming-motion-by-for-women-scotland-limited-against-the-scottish-ministers-01-november-2023.pdf ↩︎

  7. https://www.theguardian.com/world/2025/apr/16/a-huge-reset-trans-rights-campaigners-and-gender-critical-activists-react-to-supreme-court-ruling ↩︎

  8. https://x.com/JolyonMaugham/status/1912804815777734731 ↩︎

  9. https://supremecourt.uk/uploads/uksc_2021_0062_judgment_29f9f2297e.pdf para 30 ↩︎

  10. https://publications.parliament.uk/pa/ld200001/ldjudgmt/jd001207/spath-1.htm para 396 ↩︎

  11. https://www.supremecourt.uk/cases/uksc-2012-0066 para 14. ↩︎

  12. https://www.supremecourt.uk/cases/uksc-2021-0062 ↩︎

  13. https://publications.parliament.uk/pa/ld200203/ldjudgmt/jd030313/quinta-1.htm ↩︎

  14. https://www.supremecourt.uk/cases/uksc-2011-0264 ↩︎

  15. https://www.judiciary.uk/wp-content/uploads/2018/09/co-4908-2017-good-law-project-v-electoral-commission-final-judgment.pdf ↩︎

  16. https://www.uniset.ca/other/cs3/19702AER33.html ↩︎

  17. http://www.pfc.org.uk/caselaw/R%20v%20Tan%20and%20others.pdf ↩︎

  18. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57974%22]} ↩︎

  19. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57974%22]} para 78. ↩︎

  20. https://hrcr.org/safrica/equality/James_EastleighBoroughCouncil.htm ↩︎

  21. https://www.legislation.gov.uk/ukpga/2010/15/section/26 ↩︎

  22. https://www.bbc.co.uk/news/articles/ce84054nqnyo ↩︎

  23. https://www.theguardian.com/uk-news/2025/apr/17/trans-women-uk-railways-strip-searched-male-officers ↩︎

  24. https://x.com/JolyonMaugham/status/1912805095198142581 ↩︎

  25. https://oldsquare.co.uk/wp-content/uploads/2021/11/R-on-application-of-AEA-v-EHRC-2021-EWHC-1623-Admin.pdf ↩︎

  26. https://www.theguardian.com/law/2025/may/22/court-ruling-legal-definition-of-a-woman-misinterpreted-lady-hale ↩︎

#Equality Law