Posted by ccld201
23 July 2026[2025] UKSC 16 – 16 April 2025
Key words
Public Law; Equality Law; Personal Determination; Employment Law; Discrimination, Transgender people’s rights
Overview
Appeal of Case [2023] CSIH 37
The review concerned guidance relating to the Gender Representation on Public Boards (Scotland) Act 2018. The guidance was that for the purposes of monitoring the composition of boards, “woman” was to be understood in line with s.11 and s.212(1) of the Equality Act 2010.
The Lord Ordinary concluded therefore that “sex” was to be understood as encompassing those with a Gender Recognition Certificate (GRC). The Supreme Court found that “sex” was to be understood as “biological sex” and therefore not include those with a Gender Recognition Certificate. The Court used human dignity both as an example of a legitimate aim, and in order to understand the purpose of the statute.
Key Issues
Whether the Equality Act 2010 is affected by GRC’s created by the Gender Recognition Act 2004 when interpreting the terms “sex”, “man”, “woman”, “male”, and “female”.
Whether the Equality Act treats a trans woman with a GRC as a woman for all purposes within the scope of the provisions, or whether it is exclusive in referring to biological women and biological sex.
What the appropriate interpretation of provisions of the Sex Discrimination Act 1975 referencing a “woman” and “man” were. This is especially in light of P v S and Cornwall County Council [1996] ICR 795 and the adopted Sex Discrimination (Gender Reassignment) Regulations 1999.
How any interpretation of the terms impacts on the dignity of the concerned groups, specifically with regards to logical outcomes from conflicting interpretations.
Meaning and significance of human dignity for the UKSC in the judgement of Lord Hodge, Lady Rose and Lady Simler
[99] The appellant submitted that the usefulness of section 9(1) [of the Gender Recognition Act] was now spent because the problems encountered by trans men and trans women that the legislation was designed to remove have all been removed by other legislation. […]
[100] We do not accept that. Although many provisions of the GRA 2004 have been overtaken by other legislative developments, we consider that the Act continues to have relevance and importance in providing for legal recognition of the rights of transgender people. This recognition of their changed status has practical effects for individual rights and freedoms (including, for example, in the context of marriage, pensions, retirement and social security) but also in recognising their personal autonomy and dignity and avoiding unacceptable discordance in their sense of identity as a transgender person living in an acquired gender. [emphasis added]
[206] Accordingly, [in relation to s.12 of the Equality Act 2010] a person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females. This is coherent and understandable on a biological understanding of sex. On the other hand, if a GRC under section 9(1) of the GRA 2004 were to alter the meaning of sex under the EA 2010, it would mean that a trans woman (a biological male) with a GRC (so legally female) who remains sexually oriented to other females would become a same sex attracted female, in other words, a lesbian. The concept of sexual orientation towards members of a particular sex in section 12 is rendered meaningless. It would also affect the composition of the groups who share the same sexual orientation (because a trans woman with a GRC and a sexual orientation towards women would fall to be treated as a lesbian) in a similar way as described above in relation to women and girls.
[207] Thus, as well as the inevitable loss of autonomy and dignity for lesbians such an approach would carry with it, it would also have practical implications for lesbians across several areas of their lives [emphasis added]
[211] Part 3 of the EA 2010 regulates the provision of services and public functions, and we have set out above the terms of the prohibition in section 29 (making it unlawful, among other things, to discriminate in the provision of a service or the exercise of a public function). Schedule 3 contains exemptions from this general prohibition. As we shall explain, some of these permit what would otherwise constitute gender reassignment discrimination but make no similar provision for persons issued with a full GRC. Other provisions permit carve-outs from what would otherwise constitute sex discrimination under the EA 2010. In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances. These provisions are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group – for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) [emphasis added]
[213] If sex has its biological meaning in this paragraph [EA 2010, sch.3 para.26], then a service-provider can separate male and female users as obvious and distinct groups. For example, a homeless shelter could have separate hostels for men and women provided this pursued a legitimate aim, which might be the safety and security of women users or their privacy and dignity (and the same for male users). [emphasis added]
[217] Likewise, a certificated sex interpretation of the conditions in paragraph 27(6) and (7) (that a person of one sex might reasonably object to the presence of a person of the opposite sex, and the physical contact provision) will not be capable of being fulfilled in practice. […] While many women in a female-only changing room or on a women-only hospital ward or in a rape counselling group might reasonably object to the presence of biological males, it is difficult to see how the reasonableness of such an objection could be founded on possession or lack of a certificate. This is so especially when the distinction does not track physical appearance or presentation, and the woman is unlikely to have any information about the GRC at the point at which her objection might be raised. A trans woman with a GRC who presents fully as a woman may feel she is more likely to prompt objections from other users if she enters the men’s changing room or other facilities than if she uses the women’s changing room or facilities. But in facing that dilemma she is in the same position as a trans woman without a GRC. Although such trans women may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and dignity of the other women users, the Scottish Ministers do not suggest that a trans woman without a GRC is legally entitled to do so. [emphasis added]
Follow-up reading:
Peter Walker and Libby Brooks, ‘EHRC updates guidance on how to apply Supreme Court rulling on gender’ The Guardian, 14.04.2026
Hanna-Maria Niemi, ‘ECtHR case-law and the intersubjective elements of human dignity’, 02.07.2026
Mollie Gascoigne, ‘Legal sex status: the attitudes of non-binary people towards reform in England and Wales’, 04.10.2023
Jonathan Hall is a second-year Law (LLB) undergraduate at the University of Exeter with an interest in the human rights jurisprudence, especially concerning human dignity.