On 16 April 2025, in the case of For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [2025] UKSC 16, the UK Supreme Court ruled that “the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex…”.
At first blush, this may cause concern, seemingly reducing the protections for the transgender community under the Equality Act 2010. However, upon further consideration, largely, it can be considered that the protection afforded under the Act remains the same.
It is of note that the court was only considering whether the terms woman and sex in the Equality Act would also apply to those who hold a Gender Recognition Certificate (‘GRC’) and therefore whose ‘acquired sex’ is female (even where their biological sex is male). The judgment noted that in regard to those who do not possess a full GRC “Their sex remains in law their biological sex”. As such, had the outcome found in favour of the respondent, it seems that protection would only be afforded to those with GRCs, in any event, and not all people who identify as a gender which differs to their biological sex.
Rather than this judgment having changed any legal protections, it will be it’s interpretation more generally in society, which is of concern.
Prohibited conduct under the Equality Act 2010
Direct discrimination
Direct discrimination occurs where an individual has been treated less favourably than another because of a protected characteristic or because of a perceived protected characteristic.
Indirect discrimination
Indirect discrimination will occur if an organisation or service provider applies a provision, criterion or practice across the board, which puts people who hold one of the protected characteristics at a particular disadvantage and puts, or would put, the complainant (who shares the protected characteristic) at that disadvantage.
Indirect discrimination will also occur if an organisation or service provider applies a provision, criterion or practice across the board, which puts people who hold one of the protected characteristics at a disadvantage, and puts, or would put, a person (who does not share that protected characteristic) at substantively the same disadvantage as those who do share it.
A person will not have been indirectly discriminated against if the organisation or service provider can show the provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
Harassment
An individual is a victim of harassment if, as a result of a protected characteristic, they are subjected to unwanted conduct, (whether this be verbal or physical), which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Victimisation
An individual can be subjected to victimisation if they either do a protected act or an organisation believes that they have done or may do a protected act and, as a result of this, they are subjected to a detriment. A protected act can include doing anything for the purposes of or in connection with the Equality Act 2010. This means that you do not need to rely upon your own protected characteristic to bring a claim of victimisation (because, for example, you can be victimised for giving evidence in support of an Equality Act claim brought by someone else).
The impact of this judgment on the ability of a trans woman to bring a claim of discrimination on the grounds of sex
Direct discrimination / harassment
Section 13(1) Equality Act 2010 includes a prohibition of direct discrimination based on perception.
As a result of this, a person can claim sex discrimination where they are ‘perceived’ as a woman. In such cases, the claimant would compare their treatment to that of a person not perceived to be a woman. This does not require a person to hold a GRC or to declare their biological sex.
The judgment of the Supreme Court provides an example in this regard, at paragraph 251:
“Take, for example, a trans woman who applies for a job as a sales representative and the sales manager thinks that she is a biological woman because of her appearance and does not offer her the job even though she performed best at interview and gives the job instead to a biological man. She would have a claim for direct discrimination because of her perceived sex and her comparator would be someone who is not perceived to be a woman. The fact that she is not a biological woman should make no difference to her claim, which would be treated in the same way as a direct discrimination claim made by a biological woman based on the sex of the complainant herself.”
As such, protection from direct discrimination will still be afforded to any person perceived as a woman, regardless of their biological sex.
The Supreme Court also clarified that the same is true of harassment, under Section 26 Equality Act 2010 stating “under Section 26(1)(a) the complainant, B, does not have to possess the relevant protected characteristic to bring an unlawful harassment claim”.
Providing an example, the Supreme Court stated (at paragraph 256).
“Applied, for example, to the case of a trans woman with a GRC, who presents as a woman at work and is perceived as a woman, and whose trans status and GRC are confidential: if a colleague harasses her (by making sexualised references to what she is wearing, or degrading comments about how she looks) she can bring a claim for harassment related to sex…”
Protection against harassment on the grounds of sex will therefore also be afforded by the Equality Act 2010, where a person is perceived as a woman, regardless of their biological sex.
Indirect discrimination
The legal protection regarding indirect discrimination is extended not only to protect those who share a protected characteristic, but those who suffer the same disadvantage as those who do (Section 19A(1)(e) Equality Act 2010). This means that having the protected characteristic referred to is not essential to pursue a claim of indirect discrimination.
The effect of this is, that even though transgender people may not, legally (within the meaning of ‘sex’ under the Equality Act 2010), be considered to hold the same sex as that with which they identify, they are still able to bring a claim of indirect discrimination on the grounds of that sex.
Protected characteristic of gender reassignment
Transgender individuals also have protection from discrimination under the protected characteristic of gender reassignment.
Section 7(1) Equality Act 2010 states that
A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
This protects those with a GRC, but also those who do not hold a GRC.
The difficulty that remains for the transgender community is that there are seemingly limited grounds to pursue a claim if they are prevented from accessing services or securing roles dedicated just for women or men and they are not biologically female or male. Such claims would likely need to be brought based on the person’s biological sex, but may face difficulties because the Equality Act 2010 allows service providers to operate single-sex and separate-sex services in some circumstances. The merit of any potential claim would therefore need to be considered on a case by case basis.
What should you do?
If you feel that you have been discriminated against as a result of gender reassignment, sex, or any of the further protected characteristics outlined in the Equality Act 2010, please do not hesitate to contact us.
Similarly, if you have received a complaint or claim of discrimination against you as a business or organisation, or you are unsure of your obligations under the Equality Act 2010, then we may be able to assist.
You can contact our specialist team for further advice on 0161 696 6170.
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