Last year, the Supreme Court was asked, ‘What is a woman?’ for the purposes of the Equality Act 2010. It gave a clear judgment last April in the landmark For Women Scotland Ltd v The Scottish Ministers [2025] case which ruled that a “woman” means a biological female. This does not include transgender women, even those who have a gender recognition certificate.

There’s been a lot of heated debate and commentary on this case because of what it means for women and trans people in their everyday lives. Some people consider this a victory for women’s rights, while others think it is a huge step backwards for trans people’s rights.

Charities are on the frontline of this issue in their roles as service providers, membership associations and/or employers, and there are still a lot of outstanding questions around how to navigate this change. For example, do you have to offer single sex services? Can you still be trans inclusive?

We take a look at where we are at now following the judgment last year and explore some of the key points that trustees and charities need to think about.

The Supreme Court judgment

The judgment is very clear that a “woman” means a biological female – and campaigners will tell you that applying it in real life is very straightforward. But it has in fact created a great deal of uncertainty. Especially on basic, everyday questions like what changing facilities and lavatories people can use. This is because the Equality Act covers a number of different ‘life areas’, and many of them will be relevant to charities.

What guidance is available?

The Charity Commission is planning to issue new guidance specifically for trustees and charities, after we have revised guidance from the Equality and Human Rights Commission (EHRC). The EHRC’s guidance is important because it’s taken into account by courts if claims are brought for discrimination (see our blog posts here and here on the first applications of the For Women Scotland judgment in recent discrimination and harassment claims).

Shortly after the Supreme Court judgment was given, the EHRC published guidance, which leaned towards a restrictive approach to trans inclusion and left a lot of practical questions unanswered. That guidance has now been withdrawn.

The EHRC submitted an updated draft of its Code of Practice for Services, Public Functions and Associations (Services Code) to the Government for approval in early September. The Services Code provides guidance on the application of the Equality Act in the provision of services. We are still waiting for this Code, which is said to run to over 300 pages, to be approved. See our blog on why this is taking so long and what organisations can do while they wait.

Practical implications of the For Women Scotland judgment

Since the judgment was made, some claims have been brought to the Employment Tribunal about people using gendered facilities, but these have not been consistent. For example:

  • A recent claim was brought by a nurse called Sandie Peggie, who objected to sharing a changing room with a transgender doctor. The tribunal found it was not “inherently unlawful” for biological men who identify as women to use female single-sex spaces.
  • In a similar case, that of B M Kelly v Leonardo UK Ltd, the claimant objected to sharing the toilet facilities with a transgender colleague. The tribunal found that the toilet policy was a “proportionate means of achieving a legitimate aim” to create an inclusive workplace environment for trans staff.
  • In another case, a claim was brought by nurses in Darlington about who can use the women’s changing rooms. The judge found that the NHS trust violated nurses’ dignity and created an intimidating environment by allowing transgender women to use the single-sex space.

Even where first instance decisions have looked promising for trans people, those judgments are going to be appealed and the appeals may well be successful. It’s not clear at the moment how we should be applying the Supreme Court’s judgment and what that actually means for people in real life.

Key takeaways:

  1. Commentators and campaigners have focused on the fact that it is lawful to provide single sex services, but this doesn’t mean it’s the default position. You do still need to show you meet certain legal tests set out in the Equality Act, and just because you can, doesn’t mean you have to – it’s an option, not a requirement. The single sex exception exists to protect organisations against claims that they are discriminating against the excluded sex.
  2. The biggest challenge for organisations who wish to take a trans inclusive approach is how they justify including people who share a biological sex (e.g. females) plus people who identify with them (e.g. transgender women), while excluding everyone else. There are exceptions and defences in the Equality Act that could be relied upon to do this in the right circumstances. The Supreme Court judgment didn’t address these exceptions and defences directly because that’s not the specific question which was being asked in the case.
  3. The law requires different rights to be balanced, and for each service or activity to be considered on a case-by-case basis. All charities will have to do their own thinking, and make sure they meet the relevant legal tests in the Equality Act, whichever approach they wish to take (exclusive or inclusive). There will also be other legal issues to consider, most obviously the trustees’ charitable duties. David Holdsworth, Chief Executive Officer of the Charity Commission, reminded trustees last week of the Charity Commission’s guidance on Decision-making for charity trustees (CC27), which sets out seven decision-making principles developed by the courts that will be helpful to refer to while we wait for the final statutory guidance from the EHRC.

This is a topic which stirs strong emotions, and we hope for guidance which generates more light than heat in this already heated debate. As this area is regularly evolving, organisations should ensure that they keep applicable policies under regular review, and obtain specialist legal advice where needed.

If you would like to learn more about the background of the FWS case, you can find out more here. Get in touch with Mindy Jhittay if you would like to discuss anything above further.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.