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UK’s Top Court Draws the Line: GRC Doesn’t Make Trans Women Legally Female under EA 2010

In a judgment dated April 16, 2025, the UK Supreme Court ruled that under the Equality Act 2010, the term “woman” refers to a biological woman, and that holding a Gender Recognition Certificate (GRC) does not change a person’s sex for the purposes of the Act.

This case arises amid ongoing tensions over the rights of transgender individuals and women, including an employment tribunal brought by a nurse suspended by NHS Fife after objecting to a transgender doctor using the women’s changing room. The health board is also under scrutiny for failing to meet its obligations to provide single-sex changing facilities.

For Women Scotland v. The Scottish Ministers: Background

The Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018 to promote women’s appointments to non-executive roles on boards of certain Scottish public authorities, setting a target of 50% female representation. Section 2 of the 2018 Act defined “woman” to include individuals with the protected characteristic of gender reassignment under the EA 2010, provided they were living as women and proposed to undergo, were undergoing or had undergone a transition process. This definition, along with paragraphs of the June 2020 statutory guidance, was challenged by the group For Women Scotland.

On appeal, the Second Division of the Inner House of the Court of Session declared that the definition of “woman” in Section 2 was outside the legislative competence of the Scottish Parliament, as it purported to legislate on a reserved matter, namely equal opportunities. In response, Scottish Ministers issued revised guidance stating that where a full GRC is issued to a person whose acquired gender is female, the person’s sex is that of a woman, so that her appointment would count toward the 50% objective. However, this interpretation came to be contested as falling outside the Scottish Government’s devolved competence.

Main Issue

The main issue in this case is whether references to “sex” and to “woman” and “female” in the EA 2010 should be interpreted to include persons who have an acquired gender through the possession of a GRC, in the light of Section 9 of the Gender Recognition Act 2004. This provision provides that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, the acquired gender.

This case does not concern the majority of trans people without a GRC, whose legal sex remains their biological sex, but addresses the position of the small minority of trans people who hold a full GRC.

Revised Guidance Held to be Lawful by the Court of Session

The appellant’s challenge was heard in the Outer House by Lady Haldane, who dismissed the petition in a carefully reasoned judgment in December 2022, finding the Scottish Ministers’ revised guidance on the 2018 Act to be lawful. The Second Division of the Inner House later rejected the appellant’s reclaiming motion in November 2023, prompting the current appeal.

Supreme Court’s Decision

Here are some of the key aspects of the decision of the Supreme Court:

  • Consistent Interpretation: The Court stressed that the EA 2010 must be interpreted in a clear and consistent way so those with obligations under the Act can identify groups that share a protected characteristic and perform their obligations in a practical way.
  • Indicators that Sex has its Biological Meaning: Certain provisions, such as those relating to pregnancy and maternity, can only be interpreted as referring to biological sex. If a certificated sex interpretation is adopted, trans men with GRCs would be classified as male and therefore excluded from maternity protections, despite being biologically capable of pregnancy.
  • No Variable Meaning: The Court rejected the suggestion that the words can bear a variable meaning so that in the provisions relating to pregnancy and maternity, the EA 2010 refers to biological sex only, while elsewhere, it refers to certificated sex as well.
  • Separate Characteristics: Sex and gender reassignment are distinct protected characteristics under the EA 2010. The interpretation favoured by the Equality and Human Rights Commission (EHRC) and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC greater rights than those who do not. This could also complicate legal obligations as GRC is confidential and not readily knowable.
  • Impact on Those with the Protected Characteristic of Sexual Orientation: If a certificated sex interpretation is adopted, it could have a chilling effect on the ability of lesbians to associate in lesbian-only spaces.
  • Workability of Other Provisions: A certificated sex interpretation would make other EA 2010 provisions, like those relating to separate spaces and single-sex services (including changing rooms, hostels, etc.), and women’s fair participation in sport, unworkable. The proper functioning of these provisions depends on a biological interpretation of sex.
  • Applicability of Section 9(3) of the GRA 2004: The Court held that the EA 2010 provisions discussed in the judgment fall under the exception in Section 9(3) of the GRA 2004, meaning the general rule in Section 9(1)—that a person’s acquired gender through GRC becomes their legal gender—does not apply. As such, “sex”, “man” and “woman” in the EA 2010 refer to biological and not certificated sex.

With this, the Court ruled that the Scottish Government’s revised guidance was incorrect: a trans woman with a GRC does not fall within the definition of “woman” under Section 11 of the EA 2010. Therefore, under Section 2 of the 2018 Act, “woman” refers only to biological women. The Court emphasised that this judgment does not discourage appointing trans people to public boards or undermine efforts to improve their representation. Still, it clarified that the appointments of trans women with GRC do not count toward the 50% gender representation target for women.

Implications

The UK Supreme Court’s ruling has significant implications for hospitals, refuges, sporting bodies, schools, and other organisations, as outlined by the EHRC in its interim update dated April 25, 2025. In workplaces, adequate single-sex toilets and changing and washing facilities are mandatory.

In response to the ruling, the Football Association (FA) has announced a policy change: with effect from June 1, 2025, transgender women will no longer be eligible to compete in women’s football in England. The Scottish FA board has likewise determined that, from the start of season 2025/26, participation in competitive girls’ and women’s football governed by the Scottish FA will be restricted to biological females. Similarly, the England and Wales Cricket Board (ECB) has revised its regulations with immediate effect, stating that only individuals whose biological sex is female may participate in women’s and girls’ cricket matches.