A Case of Significant Silences – UK Constitutional Law Association
For Women Scotland v Scottish Ministers [2025] UKSC 16 is a judgment that has triggered great public discussion about the position of trans people in Great Britain (for an interesting discussion of the legal position in Northern Ireland, see Deb et al, “Limits to the UK Supreme Court’s Reach: Northern Ireland, the Windsor Framework and Trans Rights”). One of the striking features of the judgment is that the Court’s reasoning appears not to address a number of significant issues, in particular:
- The human rights consequences of a “biological sex” interpretation;
- The House of Lords’ conclusion in Chief Constable of West Yorkshire v A (No 2) [2004] UKHL 21 that the Sex Discrimination Act 1975 used a trans-inclusive definition of sex, and;
- The EHRC’s Statutory Code of Practice for Services, Public Functions and Associations, which states as a general rule that services should treat trans people in accordance with the gender in which they present.
This piece considers the significance of those omissions, and whether consideration of the issues above would have affected the Court’s conclusion in the appeal. In short, I argue that the judgment has jeopardised the UK’s compliance with the European Convention on Human Rights and introduced considerable uncertainty to the interpretation of the Equality Act 2010. The Court’s comments about single-sex spaces appear to place trans people in a worse position than they were even prior to the passage of the Gender Recognition Act 2004. One solution is for Parliament to remedy this state of affairs.
In the interests of full disclosure, I should state that I was a Judicial Assistant at the Supreme Court from September 2023–August 2024. I am also trans. I had no involvement with the For Women Scotland appeal and write this piece in a personal capacity.
Judgment and relevant background
For Women Scotland had brought a judicial review of the Scottish Government’s statutory guidance on the Gender Representation on Public Boards (Scotland) Act 2018. The guidance stated, in effect, that for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018, the definition of a “woman” was the same definition as under the Equality Act 2010, and included trans women who had obtained a Gender Recognition Certificate (“a GRC”) under the Gender Recognition Act 2004 (“GRA 2004”). For Women Scotland argued that this misstated the law because the definition of “sex” under the Equality Act should be understood to refer to “biological sex”. This challenge was dismissed by both the Outer House and on appeal to the Inner House of the Court of Session, whose judgments can be found on the Scottish Courts and Tribunals Service website.
The Supreme Court agreed with For Women Scotland’s interpretation of the meaning of “sex”, “man” and “woman” in the Equality Act 2010 and allowed its appeal.
The most relevant statutory provisions are section 9(1) and (3) of the GRA 2004, which read:
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
…
(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.
The judgment is long, but the reasoning of the Supreme Court can be summarised briefly.
First, the Court held that the exception in section 9(3) of the GRA 2004 does not require the other enactment to expressly disapply the rule in section 9(1). It is also not appropriate to apply the test of necessary implication. Rather, the exception in section 9(3) will also apply where the “terms, context and purpose” of the enactment show that it does, “because of a clear incompatibility” or because the provisions of the other enactment “are rendered incoherent or unworkable by the application of the rule in section 9(1)” (para 156).
Secondly, the Court noted that the Equality Act 2010 does not expressly disapply the rule in section 9(1). However, having undertaken what it describes as a “careful” consideration of a number of sex-related provisions in the Equality Act 2010, the Court held that the Act would be “incoherent and unworkable” if the rule in section 9(1) GRA 2004 were applied (para 264).
Accordingly, the Court held that the exception in section 9(3) of the GRA 2004 applied, and the terms sex, woman and man in the Equality Act 2010 mean “biological sex”, “biological woman” and “biological man”.
The absence of a human rights analysis
The Supreme Court concluded that on conventional interpretive principles, “sex” in the Equality Act 2010 means “biological sex”. It did not consider whether its “biological sex” interpretation would be consistent with trans people’s human rights under the European Convention on Human Rights (“ECHR”). There were strong arguments put before the Court that it would not be, and these were the focus of Amnesty International UK’s submissions, who were given permission to intervene in the case. Those submissions are acknowledged in a single sentence at para 34 (“The court also benefited from written interventions by Amnesty International UK, which submits that human rights principles demonstrate beyond doubt that the interpretation of the Scottish courts is correct.”). The submissions do not appear to be addressed in form or in substance anywhere in the judgment.
Those who are interested in Amnesty’s submissions can read them on their website, but in summary, the submissions make the following points:
First, in Goodwin v UK (2002) 35 EHRR 18, the European Court of Human Rights (“ECtHR”) held that the UK had breached its positive obligation under Article 8 to ensure respect of the applicant’s private life by failing to recognise her in her acquired gender. As is well-known, this decision led to the enactment of the GRA 2004. The case was not just about the right to marry, but rather that across multiple dimensions of interaction in life Ms Goodwin was subjected to discriminatory and humiliating treatment. The ECtHR stated that “the unsatisfactory situation in which post-operative trans [persons] live in an intermediate zone [as] not quite one gender or the other is no longer sustainable.” In Goodwin at paras 82 and 100, the ECtHR held that biological factors alone could not be decisive in denying legal recognition to trans people.
Secondly, the ECtHR has held that “gender identification” falls within the sphere protected by Article 8, and that the “very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of trans [persons] to personal development and to physical and moral security” (Van Kück v Germany (2003) 37 EHRR 51 (at para 18)).
Thirdly, while the comments in Goodwin were about trans people who had had gender reassignment surgery, subsequent case law has confirmed that the protection extends to all trans people regardless of whether they have undergone surgery. In AP, Garçon and Nicot v France (unreported, 6 April 2017), the ECtHR stated that despite the fact that previous judgments had focussed on trans people who had had surgery, it could not however be inferred from this “that the issue of legal recognition of the gender identity of transgender persons who have not undergone gender reassignment treatment approved by the authorities, or who do not wish to undergo such treatment, does not come within the scope of application of Article 8 of the Convention” (at para 94). Rather, “the right to respect for private life under Article 8 of the Convention applies fully to gender identity, as a component of personal identity. This holds true for all individuals” (at para 95). From the outset, in passing the GRA 2004 the UK chose not to make surgery or any physiological transition a condition of gender recognition.
Fourthly, post-Goodwin, the ECtHR has continued to emphasise the importance of consistency and coherence in domestic law when determining a state’s obligations under Article 8. One of the factors weighing on the side of the applicant is “the impact on the applicant of a discordance between the social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under [Article 8]”, see Hämäläinen v Finland (2014) 37 BHRC 55 at para 66.
Amnesty’s submissions on ECHR rights concluded as follows:
23. As set out above, the fundamental purpose of section 9 GRA 2004 was to give legal recognition to trans people pursuant to the body of human rights case law, and the underlying values of human dignity and personal autonomy as well as legal and administrative coherence. In AIUK’s submission, it is inimical to this purpose to classify a person with a GRC other than in accordance with their legally acquired gender for the purposes of sex discrimination legislation.
24. To do so would be to consign such persons to an “intermediate zone [that] is not quite one gender or another”. It would also be productive of deep internal inconsistency within domestic law lacking any objective justification: on the one hand, broad legal effect is given to acquired gender for “all purposes” (section 9 GRA 2004), but on the other, this is denied in respect of the fundamental matter of legal protection from sex discrimination in the important spheres of human interaction governed by Parts 3-7 of the EA 2010 (namely, services and public functions, work, education, and associations). Indeed, this would mean that Ms Goodwin could still be treated as a man before an Employment Tribunal in the very same way she complained about in her ECtHR application ([15]). It would also serve to perpetuate the indignity, humiliation and insecurity of trans persons within everyday life which Goodwin required Member States to take action to redress.
The Supreme Court therefore was presented with strong argument grounded in the case law of the ECtHR that a trans-exclusionary interpretation of sex would breach the Article 8 rights of trans people. In those circumstances, it should have considered whether a section 3(1) reading was necessary to avoid breaching the human rights of trans people. It did not do so.
The absence of reference to section 3(1) HRA 1998 is notable in the Court’s rejection of the variable definition approach, according to which references to “sex” mean different things in different sections of the Act (judgment at paras 189–197). One of the problems the Court identified for the “certificated sex” interpretation is that the Equality Act 2010’s protections about pregnancy and maternity discrimination expressly apply to women. Trans men with a GRC may become pregnant, give birth and/or breastfeed, and a “certificated sex” interpretation would mean that they could be prevented from relying on the relevant anti-discrimination protections. The Court did not consider whether this problem could have been overcome by section 6 of the Interpretation Act 1978, which states that words importing the feminine gender include the masculine, unless a contrary intention appears.
The Inner House had reached the conclusion that the references to a “woman” in the pregnancy and maternity provisions should include a trans man with a GRC because of the provisions’ particular biological context, but that the remainder of the Act dealt with sex in accordance with section 9(1) of the GRA 2004. The Supreme Court criticised this variable definition approach at paras 189–197 of its judgment. At para 195, the Court held that the Scottish Government’s “bare assertion that a variable definition is ‘not impermissible as a matter of statutory construction’ falls far short of providing any compelling basis for concluding that a variable definition was intended in section 212(1) or is required.” However, the strength of the interpretive obligation under section 3(1) HRA 1998 is such that even a statutory interpretation which would otherwise be merely “permissible” is required if that interpretation is necessary to avoid a construction that is incompatible with Convention rights.
The decision not to address section 3(1) HRA 1998 also causes uncertainty in the interpretation of the effects of the judgment. The Court’s decision appears to authorise a trans-exclusionary interpretation of the Equality Act 2010 in circumstances where the Court has not considered whether following that interpretation will lead to human rights breaches. Public bodies nevertheless remain bound by the duty under section 6 HRA 1998 to comply with the ECHR, and will need careful advice on how they can comply with their obligations after the judgment. Further, any courts deciding subsequent cases will also continue to be bound by their duties under sections 3 and 6 HRA 1998.
Chief Constable of West Yorkshire v A (No 2)
In For Women Scotland, the Court reached the view that sex has always meant “biological sex” in discrimination law, including under the Sex Discrimination Act 1975 (“SDA 1975”) which preceded the Equality Act 2010. However this conclusion would appear to be at odds with the House of Lords decision in Chief Constable of West Yorkshire v A (No 2) [2004] UKHL 21.
In that case, the House of Lords held that the SDA 1975 used a trans-inclusive definition of sex by virtue of the Equal Treatment Directive. At para 56, Baroness Hale, giving a judgment with which with Lord Steyn and Lord Carswell agreed, stated that:
For the purposes of discrimination between men and women in the fields covered by the Directive, a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned.
Lord Bingham made comments to a similar effect at para 11, expressly referring to the effect of the Directive on the definitions in the SDA 1975.
While the judgment in For Women Scotland cites the case of Chief Constable v A, these important conclusions are unacknowledged. However, the Court clearly reached a different conclusion on the meaning of sex under the SDA 1975 (see the judgment at para 265(vi)), and the passages in For Women Scotland which explain its conclusion about the SDA 1975 do not answer the House of Lords’ reasoning in Chief Constable v A, which is that the Equal Treatment Directive itself required sex to be given a trans-inclusive meaning within the SDA 1975. It is regrettable that the Supreme Court did not address the point in its judgment, given the importance of legal certainty.
The fact that the GRA 2004 was intended to determine a trans person’s sex for the purposes of the SDA 1975 also finds express support within the Explanatory Notes to the GRA at para 27, and was expressly confirmed by the Government as the Bill was promoted in the House of Lords (see Hansard, vol 655, col 1322 (18 December 2003)). As noted by the Court at para 9 of the judgment, explanatory notes may cast light on the meaning of a statute. The Court ultimately dismissed the parts of the SDA Explanatory notes in question as being erroneous (para 81). The Hansard point, despite being raised by Amnesty, is not addressed in the judgment. One cannot help but feel that the Court may have reached a different view if it had considered the dicta in Chief Constable v A, or if necessary, had had recourse to the parliamentary record in accordance with the rule in Pepper v Hart [1993] AC 593.
In passing the GRA 2004, Parliament seems to have intended that a trans person’s sex under sex discrimination law would be determined by whether they had a GRC or not. The significance of that conclusion is that there is nothing in the Equality Act 2010 that would suggest it was passed to change the prior legal position under the SDA 1975, a view which the Supreme Court appears to have shared (see para 164).
The EHRC statutory code of practice
The Court in several places justifies the “biological sex” interpretation of the Equality Act 2010 because a “certificated sex” interpretation would require service providers to treat trans women with and without a GRC (or trans men with or without a GRC) differently, and this would be unworkable in practice because the two groups are often visually or outwardly indistinguishable (see eg paras 203, 213, 217, 224). This reasoning faces two objections that do not seem to have been explored.
First, it could equally be said that trans men are often not visually or outwardly distinguishable from cis (ie non-trans) men, and trans women are often not visually or outwardly distinguishable from cis women. Accordingly, leaving aside any human rights considerations, the same concerns about “unworkability” could be levelled at the “biological sex” interpretation. This has been apparent in public discussions of the possible consequences of the judgment, and the risks that it will lead to increased instances of people being challenged about their gender when using single-sex services. Relatedly, it is also hard to see how the Court’s acknowledgement of the right of trans people to retain privacy about their gender history (see eg at para 256) can be reconciled with its comments about exclusion from single-sex services.
Secondly, and more fundamentally, it had previously been understood that service providers were entitled to (and generally expected to) treat trans people in accordance with the gender in which they present whether or not they have a GRC. This is reflected in the EHRC’s statutory code of practice on services, public functions and associations, which was considered in the case of R (Authentic Equity Alliance CIC) v Equality and Human Rights Commission [2021] EWHC 1623 (Admin) (“AEA v EHRC”), a case which appears not to have been cited to the Court, and is not discussed in the judgment.
Under section 15(4) of the Equality Act 2006, courts and tribunals (including the Supreme Court) are required to take into account a relevant statutory code of practice published by the EHRC in any case in which it appears to the court or tribunal to be relevant. Surprisingly, neither section 15(4) nor the relevant provisions on trans people’s use of single-sex services in the EHRC’s statutory code of practice on services, public functions and associations appear to have been raised before the Court, despite the EHRC itself having obtained permission to intervene (the EHRC opened consultation on an updated draft statutory code of practice on services in October 2024, and following the For Women Scotland judgment, has announced that it will soon be consulting again on further updates to reflect the Supreme Court decision).
Paragraph 13.57 of the existing Code of Practice states that:
If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate [aim].
It is also of course significant that this Statutory Code of Practice was laid before Parliament on 12 October 2010, shortly after the passage of the Equality Act 2010. Parliament did not object to the passage above, nor to the EHRC’s interpretation of single-sex services provisions.
In AEA v EHRC, the High Court refused permission to judicially review the Code of Practice. It held that the paragraph quoted above contained no arguable error of law. At para 8, the Henshaw J held that trans women who do not have a GRC cannot be excluded from single-sex services simply on the basis that they are legally male: it was not difficult to see how they could bring an indirect discrimination claim on grounds of gender reassignment, which would require the service provider to show objective justification under section 19(2)(d) and Schedule 3, para 28 of the Equality Act 2010. At para 15, the judge rejected a further argument that if it is proportionate for a service to exclude men, it must also follow that it is proportionate to exclude trans women who do not have a GRC (and are therefore also “legally male”) as being “incompatible with the tenor” of the Equality Act 2010.
Both the Statutory Code of Practice and the case of AEA v EHRC would have assisted the Supreme Court, which was clearly operating under an assumption that if sex was given a trans-inclusive meaning in the Equality Act 2010, single-sex services would be as a matter of law open to trans people with a GRC and closed to trans people without a GRC. This is shown by the last sentence of para 217 of the judgment (“the Scottish Ministers do not suggest that a trans woman without a GRC is legally entitled to [use female-only facilities]”) and the Court’s repeated references to it being unworkable to expect service providers to distinguish between trans people with and without a GRC. That conclusion is questionable. Under the interpretation in the Statutory Code of Practice and approved in AEA v EHRC, whether a trans person had a GRC or not, service providers considering exclusion would have to apply the same legal test of proportionality.
Conclusion
The Supreme Court’s decision in For Women Scotland has significant and surprising omissions. It is not clear whether the Court would have reached a different conclusion if the above matters had been considered. The judgment has introduced great uncertainty into the legal regime by appearing to endorse trans-exclusionary practices while leaving the human rights implications of such practices unaddressed. Until the legislative situation is rectified, or clarified by further litigation, we are likely to see human rights breaches against trans people in the UK.
One solution would be for Parliament to act to correct the legal effect of the decision and return the legal position to that as understood prior to the judgment in For Women Scotland. This would likely involve passing amendments to the Equality Act 2010 to state that references to men and women include trans men and trans women who have been issued a full GRC, and amendments to the single-sex services exemptions to clarify that providing such services on a trans-inclusive basis will not mean that they cease to be single-sex services. Parliament could also take the opportunity to clarify that the Act’s provisions on pregnancy and maternity apply to trans men who have obtained a GRC. Failing that, further litigation is likely.
This piece is an abridged version of a longer article, originally published on Trans Legal Project.
Crash Wigley, Barrister at Landmark Chambers
(Suggested citation: C. Wigley, ‘For Women Scotland: A Case of Significant Silences’, U.K. Const. L. Blog (6th May 2025) (available at https://ukconstitutionallaw.org/))