On 16 April 2025 the UK Supreme Court delivered a landmark judgement affirming that under the Equality Act 2010 the terms “woman” and “sex” refer strictly to biological sex. Louise Brenlund considers the potential implications for trusts and schools.
The Supreme Court’s position as expressed in its For Women Scotland Ltd v The Scottish Ministers (2025) UKSC Ruling contrasts significantly with the previous position suggested by the Equality and Human Rights Commission (EHRC). This stated that for the purposes of the Equality Act 2010 (EqA 2010), sex could be changed by a gender recognition certificate (GRC). GRCs were introduced by the Gender Recognition Act 2004 (GRA) but are only obtainable by people aged over 18. The Supreme Court went to great lengths to be clear that they were not deciding on a person’s right to decide which gender they choose to live in; the GRA is still relevant and important. The judgement confirms that, for the purposes of the EqA2010, it would not be discriminatory on the grounds of sex to exclude trans persons from single sex spaces of their assumed gender, provided that the decision to exclude is proportionate in the circumstances.
This decision has significant implications for the education sector in England and Wales, particularly concerning single-sex spaces and safeguarding, policies and procedures.
Following this judgement, a case has been brought against Scottish Borders Council by parents concerned that the new Earlston Primary School only had gender neutral facilities. The Council conceded they had a legal obligation to provide both male and female facilities. Lady Ross of the Court of Session, has stated that she will issue a declarator confirming that there is a duty on councils to ensure that state schools must provide single-sex toilets. This is likely to be the first of many cases in this area and is something which will need to be watched with particular care.
The For Women Scotland Ltd v The Scottish Ministers (2025) Case arose from the Scottish Government’s statutory guidance under the Gender Representation on Public Boards (Scotland) Act 2018, which defined “woman” to include individuals with a GRC recognising their gender as female. For Women Scotland Ltd challenged this definition, arguing that it conflicted with the EqA 2010 which they contended defines “woman” based on biological sex, ie only those born female and not those with a GRC.
The Supreme Court unanimously agreed, ruling that the EqA 2010’s references to “woman” and “sex” are confined to biological characteristics at birth, not acquired gender status via a GRC. The Court emphasised that interpreting these terms otherwise would render the Act incoherent and unworkable, particularly in areas like single-sex services, pregnancy and maternity protections, and sexual orientation rights.
The ruling does not negate protections for transgender individuals but clarifies that such protections fall under the characteristic of “gender reassignment,” distinct from “sex” under the EqA 2010. Protection in this case applies regardless of whether a GRC is held. Trusts and schools should therefore remain careful and continue to treat trans people with respect and without discrimination or harassment.
The use of single-sex spaces, such as toilets and changing rooms, in schools may need re-evaluation.
Regulations for schools mean you already have a legal duty to provide sex-separated toilets for pupils aged 8 or more, apart from increasingly common individual toilets in fully enclosed rooms that can be secured from the inside. Schools must also provide suitable changing accommodation and showers for pupils who are aged 11 or more at the start of the school year and receive physical education.
Trusts and schools must ensure that policies regarding single-sex spaces—such as toilets, changing rooms, and dormitories—align with the EqA 2010’s definition of biological sex. The Supreme Court’s decision reinforces the legal basis for maintaining single-sex provisions, provided they are proportionate and justified by a legitimate aim, such as safeguarding.
Trusts and schools should review their policies to ensure they do not inadvertently permit access to single-sex spaces based on gender identity alone, as this could expose them to legal challenges.
Whilst there was initial concern about how wide an impact this decision might have, it will not impact on things such as admissions policies because the law has never enabled a person aged under 18 to change their sex.
Admissions policies should clearly state that enrolment in single-sex schools is determined by biological sex. While schools may admit transgender students, they must ensure that such admissions do not conflict with the legal requirements for single-sex education.
Curriculum content and staff training should reflect the legal distinctions between sex and gender reassignment. Trusts and schools may also wish to strengthen specific provisions in anti-bullying policies to protect transgender and non-binary students, ensuring understanding of discriminatory behaviour.
The court ruling also directly impacts policies regarding participation in gender-specific sports competitions of which you should be aware and undertake a review .
Employment policies should be updated to ensure compliance with the EqA 2010, recognising the distinction between sex and gender reassignment. This includes considerations in recruitment, staff facilities and dress codes. However, you may want to defer this review until further guidance is available (see below).
Trusts and schools must balance compliance with domestic equality law and ECHR obligations. This involves ensuring that policies are non-discriminatory and respect the rights of all students and staff, including transgender individuals, while adhering to the legal definitions established by the Supreme Court.
Following the Supreme Court judgement, the EHRC has issued interim guidance which states that it is compulsory for employers to provide sufficient single-sex toilets, along with sufficient single-sex changing and washing facilities, based on biological sex. This means that trans women should not be allowed to use women’s facilities and trans men should not be allowed to use men’s. This is a radical change from previous guidance and is subject to judicial review; reports also suggest that the ruling will be appealed to the European Court of Human Rights.
The guidance also states that pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilets or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required.
This guidance is not statutory guidance, proposals for updates to the EHRC Code of Practice are now undergoing consultation. Whilst a timeline has not been given, it anticipated the Code may be updated by the summer (although this may be once school holidays have begun!).
The Government has committed to publishing revised guidance for schools this year on supporting trans pupils, with the equalities watchdog also reviewing its advice in the wake of this case and its ruling.
In practice the Supreme Court ruling means that if you already have single sex toilets or changing rooms, these must relate to biological sex. If you allow students to use single sex facilities that align with their chosen gender rather than their biological sex you could be sued by:
Converting all of your toilets to gender neutral toilets doesn’t ameliorate those risks. Mixed sex facilities may indirectly discriminate against those women who need single sex facilities for their privacy, dignity and autonomy. You may also need to maintain separate sex facilities as part of your safeguarding responsibilities.
There is real uncertainty for schools on how to deal with these issues. One solution may be to provide only unisex facilities, but this would not accord with the ECHR’s interim guidance. Therefore, if not already available, schools may wish to consider whether they can make available a third space – which can be used by anyone, eg a unisex toilet alongside male and female toilets. This too may be criticised on the basis that it could “out” individuals, but it does nonetheless seem the most reasonable step to take in the interim – wherever possible.
It will also be important for schools to discuss residential trips and accommodation arrangements for trans pupils, who along with their parents, should be fully supported and involved in any decisions.
Trusts and schools should continue to support staff, pupils and others on a case-by-case basis, be sensitive, pragmatic, compassionate, open, caring and avoid taking prejudicial views, respecting and listening to all viewpoints. It remains crucial to foster an inclusive environment and remember that trans and non-binary pupils and staff are still protected under the EqA 2010.
To book an appointment or to discuss this further, please contact Louise Brenlund at [email protected] at 01732 770660.
This article is for general information only and does not constitute legal or professional advice. Please note the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.
