The implications of the For Women Scotland judgment in the world of sport

Women’s sport is the latest sphere to feel the ripple effects of the Supreme Court’s recent decision in the For Women Scotland v The Scottish Ministers case (discussed here).

In For Women Scotland, the Supreme Court held that transgender people retain their biological sex for the purposes of the Equality Act 2010 (EqA) even if they have a gender recognition certificate (GRC).

The judgment was followed by an interim update from the Equality and Human Rights Commission (EHRC), setting out the EHRC’s initial view on its practical implications. The update advised that trans women should not be allowed to access single sex services and facilities for women, with equivalent provisions applying to trans men. It also stated that, where single sex 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. On the issue of sport, the EHRC added that: “there are rules about when competitive sports can be single-sex, which we intend to address separately in due course.” The EHRC’s updated fuller statutory guidance is expected next month, following a brief consultation period from 19 May to 30 June.

In the interim, a number of sports governing bodies, including the Football Association (FA), England Netball (EN), and the England and Wales Cricket Board (ECB) have announced that, in light of legal advice received, trans women will not be allowed to play in women’s matches at any level.

What was the position on sport and gender before For Women Scotland?

Section 195 of the Equality Act 2010

Section 195 of the Equality Act 2010 (EqA) allows for competitive sport to be single-sex in circumstances where the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage comparted to average persons of the other sex as competitors in events involving the sport in question.  It refers to such sports as “gender-affected activity”. It also makes it lawful to restrict the participation of transgender people in such sports if this is necessary in order to ensure fair competition or the safety of competitors (but not otherwise). 

Examples given in the explanatory notes to this section are that it would be lawful to have men and women, though not necessarily boys and girls, compete in separate 100-meter races.

The provisions in section 195 mirror those contained in section 19 of the Gender Recognition Act 2004 (GRA), which identifies competitive sport as an exception to the GRA’s core proposition that, on receipt of a Gender Recognition Certificate (GRC), a trans person’s gender “becomes for all purposes the acquired gender”. So, for example, even if she has a GRC, a transgender woman does not have to be allowed to play in a women’s team if that would pose a risk to safety or competitiveness (and corresponding provisions apply for transgender men).

The approach taken in football

Under FA rules, boys and girls can play in mixed teams and matches up to the under 18 age group.   

All other participation (in competitive “open-age football”) is a “gender-affected activity” as defined by section 195 EqA (outlined above), and therefore single-sex.

The FA’s previous policy, which was updated as recently as March 2025, allowed transgender women who met certain physical and medical criteria (for example regarding testosterone levels and suppression) to compete in the women’s game, unless excluding them was necessary to protect the safety of other players and/or fair competition. Following a review earlier this year, the FA announced that it was going to impose additional eligibility tests from June 2025, requiring a match observer to assess the risk posed by transgender women on the pitch.

Transgender men, meanwhile, were allowed to compete in the men’s game as long as they signed a waiver accepting that doing so put them at greater risk of injury. 

Cricket

In 2024, the ECB introduced an updated policy on transgender people playing cricket, under which any player who had undergone male puberty was ineligible to participate in the top two tiers of the women’s game as well as the women’s Hundred.

However, transgender women were permitted to compete in the third tier of the domestic structure.

Netball

As part of EN’s ‘Trans Inclusion Guidance’, which was published in 2017, transgender women and girls were permitted on women’s teams, provided they met certain physical and medical criteria, such as having suitably low testosterone levels and / or having their case reviewed on an individual basis.

What did For Women Scotland say about sport and gender?

In For Women Scotland (at paragraphs 232 – 236), the Supreme Court posed the question, in relation to section 195 EqA, about whether that provision operates coherently or not if a certificated sex interpretation of sex (i.e. a definition of sex that includes transgender people with a GRC for the sex in question), rather than a biological interpretation of sex (i.e. a definition of sex based on biological sex at birth, which excludes transgender people with a GRC for the sex in question), is required to be adopted.

The Court commented that section of the 195 EqA is “plainly predicated on biological sex” and would be unworkable if a certificated sex interpretation were adopted. It went on to look at the example of women’s boxing, which it said was, on a biological interpretation of sex, “undoubtedly a gender-affected activity” and in relation to which it was “readily apparent (indeed, obvious) that women’s average physical strength, stamina and/or physique will disadvantage them as competitors against average men in a boxing match. However, if [the definition of] average women…[were to include] trans women with GRCs…the differences in strength, stamina and physique between the two groups may begin to fade”, thus making it more difficult to assess the need for exclusion and/or rely on the exemption on safety or competitiveness grounds. The Court confirmed that a biological definition of sex would mean that a women’s boxing competition organiser could lawfully refuse to admit all men and trans women (regardless of their GRC status) subject to the requirement for this to be on safety or competitiveness grounds.

The Court also pointed out that relying on a certificated sex interpretation would mean that transgender women with GRCs would be included in women’s sport but transgender women without GRCs would not; which would be an irrational distinction. 

What have the implications of For Women Scotland been so far?

Following the judgment, and in particular the analysis outlined above, some sports governing bodies have implemented a change in position, including:

• The FA, which was the first governing body to make a change following the Court’s decision, has now stated that that transgender women will no longer be allowed to play in women’s football from 1 June 2025. Transgender men will still be allowed to play in the women’s game, but only before they have any kind of hormone treatment. Transgender children – playing football in age categories from under 7 to under 18 – will still be able to play in a league of their acquired / self-determined gender.

• The ECB, which issued an update that only those whose biological sex is female will be eligible to play in women’s and girls’ cricket matches. Transgender women and girls can continue playing in open and mixed cricket.  

• EN, which has introduced a Gender Eligibility & Participation Policy, which states that transgender women will not be allowed to participate in women’s sport, effective from 1 September 2025, but does allow participation in a ‘mixed netball’ game. The new rules state that there are three distinct gender participation categories: female, male and mixed.

Reflections

The decisions from the FA, the ECB and EN brings their policies in line with sports like swimming, which in 2022 banned transgender women athletes from competing in women’s elite events if they had gone through any part of the process of male puberty, and tennis, where transgender women have been banned from playing in the female category in most domestic tennis competitions in Britain since January 2025.

Whilst the above organisations have set out their stance, other organisation such as the Football Association of Wales (FAW) have reserved their position, with the FAW recently stating that it will take time to consider the judgment and will await further guidance for the sports sector, whilst continuing to take the steps required to meet its obligations under the EqA. Separately, the Professional Darts Corporation chief executive Matt Porter, issued a statement following the judgment, stating there are no plans to make changes to its current policy which permits trans player Noa-Lynn van Leuven to compete in the Women’s Series.

Taking a step back, competitive sport presents a unique perspective for thinking about these issues, as a sphere in which division by sex has traditionally been almost universally accepted as essential to protect safety and competitiveness.

Whilst other models are possible, particularly at the grassroots level – for example, Billie Jean King’s Women’s Sport’s Foundation in the USA offers a policy to restrict participation whereby “if the skill, size and strength of any participant, female or male, compared to others playing on the team creates the potential of a hazardous environment, participation may be limited on the basis of these factors, rather than the sex of the participant” – it seems unlikely that the mainstream approach of separating participants based on their biological sex will be changed.

It appears, subject to further guidance from the EHRC, that the future for transgender inclusion in gender affected sport may be in a recognised mixed gender category. Whilst some sports, at both grassroots and professional level, have embraced the mixed gender category, other sports, such as football, are not yet there.  Though we note that the BBC has recently reported that the FA has stated its intention to help make mixed gender football available for the 2026/27 season.

The For Women Scotland judgment is still being worked through by many governing bodies, sporting clubs, sporting societies, and individuals; and we are yet to receive the EHRC’s updated Code of Practice (which it says will include provisions around sport); so it may be that further changes are on the horizon.  We watch this space with interest. 

If you would like to discuss how the judgment affects your sporting organisation’s policies, including answering questions about in what format an individual can compete in or how you make your facilities (in particular changing and toilet facilities) compatible with the current guidance, please contact Rob Turner, Therese Rankin or Matthew Smith.