In For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, the UK Supreme Court found that for the purposes of the Equality Act 2010, “woman” refers to a biological woman and “sex” refers to biological sex and not to what it termed “certificated sex” – possession of a gender recognition certificate (GRC). Since the decision, there has been a lot of debate about what this means for both women and trans people in practice.
Any employer looking to understand the effects of the judgment needs to steer a careful path, avoiding misconceptions and ensuring that the advice they receive is rooted in the law as it is, and not as it may have been understood to be. While this article focuses on the implications of the ruling for employers in the real estate sector, there are also important consequences for those responsible for the design and management of buildings, especially in the provision of toilets and changing rooms.
Transgender rights, and conflict of belief related to this topic, has been contentious in recent years. Even before this ruling, a number of cases had made clear that gender-critical beliefs can be protected under the 2010 Act. In one of the key cases on this subject (Forstater v CGD Europe [2021] UKEAT/0105/20/JOJ), it was also not disputed that a belief in gender identity could qualify for protection as a philosophical belief under the Act. Respecting all colleagues at work, no matter what their views on this emotive topic, is crucial and leaders have a particular duty to be even handed in management of these issues in the workplace.
Trans people continue to be protected from discrimination
While the case was about the particular status of trans people with a GRC, it was already law that a trans person without a GRC should be treated in accordance with their biological sex. Whether or not they hold a GRC, all trans people are still protected under the 2010 Act: the protected characteristic of gender reassignment is separate from that of sex (some of the commentary has misunderstood that point – in some other jurisdictions, gender identity is protected as a subcategory of sex).
In addition, a trans man or trans woman (again, whether or not they hold a GRC) perceived to be a man or a woman would have protection from discrimination in the same way as a biological man or woman. There is also protection from discrimination by association where a trans person suffers the same disadvantage as another protected group.
The case
Under the Gender Recognition Act 2004, a trans person may apply for a GRC, which recognises their acquired gender. The case was brought by a group of women, who objected to the Scottish government’s decision to count trans women with a GRC as women for the purposes of meeting quotas of women on boards. The question for the Supreme Court was whether the protected characteristic of sex under the 2010 Act means biological sex, or both biological and certificated sex of those holding a GRC.
In finding that sex referred only to biological sex, the Supreme Court reviewed the history and purpose of the legislation. It noted that it is important that the group to whom protections apply can be clearly defined – parts of the 2010 Act clearly refer to biological women, as they would make no sense if the broader category was used (for example, those relating to pregnancy and maternity).
The Act also includes provisions relating to single-sex services and sport, which require a biological interpretation of sex. Also, it would be wrong to create differing layers of protection for trans people with and without a GRC, not least since employers cannot usually enquire whether a person holds one. The Supreme Court also found that allowing certificated sex to be used would weaken protections relating to sexual orientation, giving the example that it would interfere with the ability to have lesbian-only spaces and associations.
Providing single sex services to employees or the public
The 2010 Act provides exceptions to the general duty not to discriminate in the provision of services which permit single-sex facilities or services, where their provision is proportionate and objectively justified. Objectively justifiable reasons may include, for example, religion, safety, privacy or dignity.
Given the finding that sex in the 2010 Act refers to biological sex, allowing a trans woman to use female facilities or services will mean those facilities or services are no longer single sex, and men cannot be refused access.
As a result, where single-sex services are appropriate (being proportionate and objectively justifiable), they should be limited to those of the relevant biological sex. A failure to provide services or facilities for either single or separate sexes (other than workplace toilets and changing rooms – see below) in such cases may give rise to indirect sex discrimination or religious discrimination claims.
For example, an occupier offering services to members of the public such as a clothing retailer should consider whether unisex changing rooms are appropriate, or whether single-sex changing rooms are proportionate and justifiable on the grounds of safety, privacy or dignity (and how, if so, their access can be limited to those of the relevant biological sex). Buildings used by the public, such as gyms, football stadiums and theatres, for example, should view their 2010 Act obligations in the same way.
For both an employer and those offering services and facilities to the public, the primary consequence of such claims would be reputational (for failing to discharge their equality law obligations). They may face claims for indirect sex discrimination or religious discrimination if they did not provide single-sex services, but losses would likely be confined to injury to feelings awards.
Although the provision of services encompasses facilities other than toilets, such as changing rooms, it is worth noting Part T of the Building Regulations 2010 (introduced in 2024). This gives guidance on the design and layout of toilet facilities in buildings other than dwellings (with some specific exclusions such as care homes, schools and custodial facilities, for example), and this guidance is consistent with the Supreme Court’s interpretation of the 2010 Act.
Additionally, the Equality and Human Rights Commission issued an interim update on the practical implications of the judgment on 25 April 2025. This update provides further guidance on facilities provided in workplaces, and services that are open to the public.
What about workplace toilets?
Toilet provision has proved to be employers’ most immediate concern following the ruling. Single-sex toilet and changing facilities in workplaces are mandatory under the Workplace (Health, Safety and Welfare) Regulations 1992 unless each toilet is an individual, lockable unit or room and has floor to ceiling walls and door.
There are no equivalent regulations mandating single-sex facilities in other places, where the approach for single-sex services above should be taken.
Applying the Supreme Court’s findings to the workplace means that an employer should not allow trans women or men access to facilities designated as being for single-sex use. If they do,
they would risk indirect discrimination claims and would find it difficult to justify this action in an employment tribunal.
This is a sensitive topic, and in practice employers will prefer not to control access to toilet facilities in this way. As a solution to this, newer buildings may already have unisex facilities which comply with the 1992 regulations.
Alternatively, some employers may choose to identify which facilities a trans employee may use (which would need to be separate, rather than designating a cubicle within the single-sex facilities) while also retaining other, separate, single-sex facilities.
Others may decide to make changes to their toilets and changing room areas to create unisex options, compliant with the 1992 regulations, for all employees to use.
In a multi-let building, where toilet facilities may be provided by the landlord outside the tenant’s demise, it is still the tenant as an employer who is responsible in this context for ensuring compliant toilet facilities are provided, signed accordingly and used appropriately. Tenants should review their toilet facilities and discuss with their landlord or property manager as a priority, if changes are needed. For good tenant relations, and to ensure a timely response, landlords may wish to proactively undertake this review themselves in order to pre-empt any tenant requests.
The necessary changes are unlikely to be expensive to make, in most cases extending to the costs of signage. Not making these changes could be far more costly to an employer, both in terms of employee goodwill and potential discrimination claims.
What should employers do now?
The EHRC has promised to produce clear, authoritative final guidance. Akua Reindorf KC, one of its commissioners, has written that what is now needed is “constructive dialogue about how the law can work for everybody”.
Employers and service providers will need to review current policies and practices to ensure compliance with the decision. The Supreme Court warned that decisions should not be made on a case-by-case basis, and where changes to policy and practice are needed, employers should be mindful of the importance of clear communication and good employee relations, as well as the effect on individual employees.
Monica Kurnatowska is a partner, Rachel Farr is a senior knowledge lawyer and Annabel Mackay is a senior counsel, all in the employment team, and Katherine Lang is a senior knowledge lawyer in the real estate team at Baker McKenzie
