The Supreme Court ruled that in the Equality Act 2010 (the Act), ‘sex’ means biological sex.

Following the UK Supreme Court judgment in For Women Scotland v The Scottish Ministers, we are working to update our statutory and non-statutory guidance.

We know that many people have questions about the judgment and what it means for them. Our updated guidance will provide further clarity. While this work is ongoing, this update is intended to highlight the main consequences of the judgment. Employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.

Key information

The Supreme Court ruled that in the Equality Act 2010 (the Act), ‘sex’ means biological sex.

This means that, under the Act:

• A ‘woman’ is a biological woman or girl (a person born female)
• A ‘man’ is a biological man or boy (a person born male) 

If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC).

• A trans woman is a biological man
• A trans man is a biological woman

This judgment has implications for many organisations, including:

• workplaces
• services that are open to the public, such as hospitals, shops, restaurants, leisure facilities, refuges and counselling services
• sporting bodies
• schools
• associations (groups or clubs of more than 25 people which have rules of membership)

In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

In workplaces and services that are open to the public:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men

There are rules about when competitive sports can be single-sex, which we intend to address separately in due course.

Schools in England and Wales must provide separate single-sex toilets for boys and girls over the age of 8. It is also compulsory for them to provide single-sex changing facilities for boys and girls over the age of 11. The law in Scotland requires schools, irrespective of pupils’ age, to provide separate toilet facilities for boys and for girls. Toilet cubicles are required to be partitioned and have lockable doors.

Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet 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. 

Membership of an association of 25 or more people can be limited to men only or women only and can be limited to people who each have two protected characteristics. It can be, for example, for gay men only or lesbian women only. A women-only or lesbian-only association should not admit trans women (biological men), and a men-only or gay men-only association should not admit trans men (biological women).

Our work to update our guidance

Our updated guidance will be available in due course. We are working at pace to incorporate the implications of the Supreme Court’s judgment.

We aim to provide the updated Code of Practice to the UK Government by the end of June for ministerial approval. 

The Code will support service providers, public bodies and associations to understand their duties under the Equality Act and put them into practice.

We are currently reviewing sections of the draft Code of Practice which need updating. We will shortly undertake a public consultation to understand how the practical implications of this judgment may be best reflected in the updated guidance. The Supreme Court made the legal position clear, so we will not be seeking views on those legal aspects.

The consultation will be launched in mid-May and last for two weeks. We will be seeking views from affected stakeholders. 

In the meantime, we will continue to regulate and enforce the Equality Act 2010, ensuring protection for all protected characteristics including those of sex, gender reassignment and sexual orientation.