For Women Scotland Ltd v The Scottish Ministers

Factual and Procedural Background

The Appellant is a feminist voluntary organisation that challenged statutory guidance issued by Entity A (the Scottish Ministers) under the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”). The guidance stated that a trans woman holding a full Gender Recognition Certificate (“GRC”) counts as a “woman” for purposes of meeting the 50 % quota for non-executive public-board appointments.

In earlier proceedings the Court of Session declared the statutory definition of “woman” in the 2018 Act to be outside devolved competence. Entity A then replaced the definition with guidance relying on section 9 of the Gender Recognition Act 2004 (“GRA 2004”). The Appellant petitioned for judicial review, arguing that the revised guidance misinterpreted the Equality Act 2010 (“EA 2010”). The Outer House and the Inner House dismissed the challenge; permission to appeal was granted to the Supreme Court (“the Court”).

Legal Issues Presented

1. Whether references to “sex”, “woman”, “man”, “female” and “male” in the EA 2010 include the acquired gender of a person who holds a full GRC, or instead refer solely to biological sex.
2. Whether, on the proper construction of the EA 2010 and section 9 GRA 2004, Entity A’s guidance—treating trans women with a GRC as “women” for the 2018 Act—was lawful and within devolved competence.

Arguments of the Parties

Appellant's Arguments

• “Sex” in the EA 2010 means biological sex; trans women (with or without a GRC) remain legally male for the purposes of that Act.
• Entity A’s guidance therefore misstates the law and is ultra vires the Scotland Act 1998 reservation on equal-opportunities matters.
• Interpreting “sex” as biological is necessary to preserve the coherence of numerous EA 2010 provisions (pregnancy, single-sex services, sport, etc.).

Entity A's Arguments

• Section 9(1) GRA 2004 provides that, upon the grant of a full GRC, “the person’s sex becomes that of a woman” for all purposes unless expressly excluded.
• The EA 2010 does not disapply s 9(1); therefore a trans woman with a GRC is a “woman” under the EA 2010 and counts toward the 50 % objective in the 2018 Act.
• The guidance is consistent with advice from Entity C (the Equality and Human Rights Commission).

Interveners’ Submissions (selected)

• Entity B: supported the Appellant, contending that a certificated-sex reading produces absurd results and that gender-reassignment protection already exists.
• Entity C: defended the guidance but acknowledged practical difficulties in areas such as pregnancy, sexual orientation, single-sex services and sport, urging legislative clarification.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court held that section 9(1) GRA 2004 does not redefine “sex” for the EA 2010. Section 9(3) makes the GRC rule “subject to other enactments”, permitting disapplication where incompatible. A detailed examination of the EA 2010 showed:

• Key provisions (e.g., pregnancy and maternity in ss 13(6), 17–18; separate/single-sex services; communal accommodation; sport; positive-action measures; sexual-orientation protections) become incoherent or unworkable if “sex” is read as certificated sex.
• The Act provides a single, binary definition: “man” = male, “woman” = female (s 212(1)). Consistency and legal certainty require the same meaning throughout.
• Gender-reassignment protection (s 7) remains distinct; trans persons—whether holding a GRC or not—retain robust safeguards via direct, indirect and harassment provisions, including claims based on perception or association.
• Interpretation advocated by Entity A would create heterogeneous groupings, impair data collection, distort positive-action schemes, and erode freedoms of association for lesbians and gays.
• The guidance therefore rests on an error of law; the 2018 Act’s objective applies only to biological women and is within devolved competence once properly construed.

Holding and Implications

APPEAL ALLOWED; GUIDANCE DECLARED UNLAWFUL.

Immediate effect: the contested sentence in Entity A’s guidance is invalid; trans women with a GRC do not count toward the 50 % “women” quota under the 2018 Act. Broader implications: the Court confirms that throughout the EA 2010 “sex” refers to biological sex. While leaving untouched individual protections for trans people under the EA 2010, the decision re-establishes clear parameters for single-sex provisions, positive-action schemes, data collection and other statutory duties. No new precedent was set concerning the scope of the GRA 2004, but statutory bodies must now align policies with this clarified reading.