Supreme Court Ruling on the definition of “woman” – implications for employers

Organisations should be reviewing their provision of facilities to ensure they are legally compliant in line with the EHRC interim update.

The Equality and Human Rights Commission (EHRC) released an interim update on Friday, 25 April 2025 to help employers and others understand how to follow the law in response to the UK Supreme Court ruling of 16 April, and clarified the language used in the Equality Act 2010.

How is sex defined in the Equality Act?

The protected characteristic of “sex” in the Equality Act 2010 refers to biological sex, not acquired gender or legal sex recognised through a Gender Recognition Certificate (GRC.)

The EHRC outlines that under the Equality 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 transgender, they do not change sex for the purposes of the Act, even if they have a GRC.
• A transgender woman is a biological man
• A transgender man is a biological woman.

Are transgender individuals protected under the Equality Act 2010?

While transgender individuals are protected against discrimination under the protected characteristic of gender reassignment under the Equality Act this protection is separate and distinct from the sex-based protections that apply to biological males and females.

Guidance for workplaces and services that are open to the public

• Transgender women (biological men) should not be permitted to use the women’s facilities and transgender 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 transgender women (biological men) not to be permitted to use the men’s facilities, and transgender men (biological woman) not to be permitted to use the women’s facilities.
• However, where facilities are available to both men and women, transgender 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.

Guidance for competitive employers, sports, schools and associations

Organisations should be reviewing their provision of facilities to ensure they are legally compliant in line with the EHRC interim update. This update from the EHRC states several instructions to be followed by employers. The update is clear that sufficient single sex facilities should be provided by employers and that transgender women should not be permitted to use the women’s facilities and transgender men should not be able to use the men’s facilities.

Will the EHRC provide guidance?

Following the ruling, the national equality and human rights regulator for England, Scotland and Wales is working to update its statutory and non-statutory guidance, which will help employers, service providers, public bodies and associations understand their duties under the Equality Act and put them into practice.

We expect the EHRC consultation to take place in May 2025 and we will provide further updates when the statutory guidance is available, or changes are made.

If you would like to discuss this topic in more detail, or want to know more about how to make your workplace an inclusive environment or are concerned about discrimination, then please contact us