The Supreme Court Judgment: Forstater & Others v The Scottish Ministers

UK Supreme Court Case No. [2024] UKSC 42 — Easy-Read Summary

Date of Judgment: 16 April 2025
Topic: What does "sex" mean in the Equality Act 2010 — biological sex or legal/certificated sex? And can a trans woman with a Gender Recognition Certificate (GRC) count as a "woman" for the purposes of Scotland's Gender Representation on Boards Act 2018?

🏛️ Background — What Was This Case About?

The Parties

• Appellants: Maya Forstater and others (supported by the organisation Sex Matters)
• Respondent: The Scottish Ministers
• Other Interveners: The Equality and Human Rights Commission (EHRC); Close the Gap; Engender; One Dance UK; the Fawcett Society

The Scottish Context

Scotland's Gender Representation on Boards (2018 Act) aims to achieve 50% representation of women on public boards. The Scottish Government issued guidance saying that trans women with a GRC should be counted as women towards this goal.

The Legal Problem

The Gender Recognition Act 2004 (GRA 2004) says that when someone gets a GRC, their gender "becomes for all purposes" their acquired gender — and their sex legally becomes that of a man or woman. But the Equality Act 2010 (EA 2010) uses the words "sex," "man," and "woman" without ever explicitly saying whether these mean biological sex or legally recognised sex.

The question before the Supreme Court was: Does section 9(3) of the GRA 2004 disapply the "for all purposes" rule in section 9(1) in relation to the EA 2010, so that "sex" in the EA 2010 means biological sex?

📜 Key Legislation Explained

The Gender Recognition Act 2004 (GRA 2004)

• Allows trans people to apply for a Gender Recognition Certificate (GRC)
• Once issued, section 9(1) says the person's gender becomes their acquired gender "for all purposes"
• Section 9(2): if acquired gender is male, the person is legally a man; if female, legally a woman
• Section 9(3): but this is subject to "provision made" in other legislation

The Equality Act 2010 (EA 2010)

• Creates the protected characteristic of "sex" — being a man or a woman
• Creates the separate protected characteristic of "gender reassignment"
• Makes it unlawful to discriminate because of sex
• Defines "woman" in section 212(1) as "a female of any age" and "man" as "a male of any age"
• The word "biological" does not appear in the Act

⚖️ The Supreme Court's Decision

The Court unanimously allowed the Scottish Ministers' appeal — but on different grounds from the lower courts.

The key findings were:

1. "Sex" in the EA 2010 means biological sex — not "certificated sex" (the sex a person becomes after obtaining a GRC)

2. Section 9(3) of the GRA 2004 disapplies section 9(1) in relation to the EA 2010's definitions of sex, man, and woman

3. The Scottish Government's 2018 Act guidance is wrong in counting trans women with a GRC as "women" for the purposes of the equality Act's sex discrimination provisions

4. But — crucially — this does not mean trans people lose protection under the EA 2010; they remain protected by the gender reassignment characteristic, and by direct discrimination provisions relating to perceived sex

🔑 The Supreme Court's Key Reasons

1. The Ordinary Meaning of "Man" and "Woman"

The EA 2010 defines "woman" as "a female of any age" and "man" as "a male of any age." These plain, ordinary words correspond with biological characteristics. The Court said:

"The ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman."

A "certificated sex" reading would create bizarre, inconsistent groups — for example, including trans women (biologically male) in "women" while excluding trans men (biologically female) who also have a GRC.

2. Pregnancy and Maternity Provisions

Sections 13(6), 17, and 18 of the EA 2010 protect women in connection with pregnancy, childbirth, and breastfeeding. These provisions can only make sense as protections for biological females. Only women can become pregnant. If "woman" included trans men with a GRC (who are legally male but may still become pregnant), these protections would be incoherent.

3. Single-Sex and Separate Services

Schedule 3 of the EA 2010 allows service-providers to offer services only to women or only to men — for example, women's refuges, cervical cancer screening, rape crisis centres, or single-sex changing rooms. These exemptions only work if "sex" means biological sex:

• A women's refuge should be able to exclude biological males, regardless of whether they have a GRC
• Cervical cancer screening is needed by biological females — not by trans men who are legally male but may have a cervix
• The privacy and dignity justifications for single-sex services depend on biological sex

If "woman" meant "anyone legally female under the GRA 2004," these exemptions would become unworkable: a service-provider could not tell who has a GRC, and the groups would include members of both biological sexes.

4. Associations and Charities

The EA 2010 allows single-characteristic associations (e.g., a women's club or a lesbian organisation) to restrict membership to people who share a protected characteristic. If "woman" included trans women with a GRC:

• A women's book club would have to admit biological men who have a GRC
• A lesbian support group would have to admit biological men attracted to women
• A women's charity would have to serve biological males

This would undermine the right to freedom of association on the basis of biological sex.

5. Sport

Section 195 of the EA 2010 allows separate sports competitions for men and women, defined as "gender-affected activities" where average physical strength, stamina, or physique would put one sex at a disadvantage. If "woman" included trans women (biologically male), the justification for single-sex competitive sport would collapse — the two groups would not be biologically distinct.

6. Clarity and Consistency for Duty-Bearers

The EA 2010 imposes duties on employers, service-providers, public bodies, and others. They must be able to identify who shares a protected characteristic in order to avoid unlawful discrimination. If "woman" sometimes meant biological women and sometimes included certificated women depending on context, this would be impossibly confusing and inconsistent.

🛡️ What This Means for Trans People

The Court was at pains to emphasise that trans people are still protected by the EA 2010. They are protected:

Through Gender Reassignment

The EA 2010 has a separate protected characteristic: gender reassignment. Trans people (with or without a GRC) are protected from discrimination because of this characteristic. It is unlawful to discriminate against someone for being trans.

Through Direct Discrimination by Perception

The Court confirmed that a trans woman who is perceived as a woman (regardless of whether she has a GRC) can bring a claim of direct sex discrimination — because she was treated badly because of her perceived sex. She does not need to have a GRC or to be legally female to bring this claim.

Through Associative Discrimination

A trans person treated badly because of their association with women (or men) can bring a direct discrimination claim on that basis.

Through Indirect Discrimination

Trans people are protected by the indirect discrimination provisions — both for disadvantage shared with other trans people, and where they share a disadvantage with their biological sex.

Pregnancy and Maternity (for trans men)

Trans men who become pregnant (whether or not they have a GRC) are protected by the pregnancy and maternity provisions of the EA 2010 — because these provisions use the word "woman" in their ordinary biological meaning.

📊 Summary of Winners and Losers

⚠️ What Was NOT Decided

The Court specifically said this judgment does not:

• Prevent trans people from being appointed to public boards
• Suggest trans people are unimportant or should not be represented
• Prevent organisations from voluntarily including trans people in diversity initiatives
• Affect the validity of the Scottish 2018 Act itself (which was found to be within Scottish Parliament competence, just correctly interpreted)
• Mean that a trans woman with a GRC can be harassed or discriminated against with impunity — she remains protected by the gender reassignment provisions

📅 Timeline of Key Events

🗣️ What the Supreme Court Said — In Their Own Words

On the meaning of the provisions:

"The definition of sex in the EA 2010 makes clear that the concept of sex is binary, a person is either a woman or a man."

On what "woman" means:

"'Woman' always and only means a biological female of any age in section 212(1). It follows that a biological male of any age cannot fall within this definition."

On the importance of clarity:

"Clarity and consistency about how to identify the relevant groups that share protected characteristics are essential to the practical operation of the EA 2010."

On trans people's protection:

"This conclusion does not remove or diminish the important protections available under the EA 2010 for trans people with a GRC."

On the purpose of the GRA 2004:

"The GRA 2004 continues to have relevance and importance in providing for legal recognition of the rights of transgender people. This recognition of their changed status has practical effects for individual rights and freedoms... but also in recognising their personal autonomy and dignity."

📚 Sources

• Supreme Court judgment: Forstater and others (Appellants) v The Scottish Ministers (Respondent) [2025] UKSC 42
• Gender Recognition Act 2004, sections 9(1), (2), and (3)
• Equality Act 2010, sections 7, 11, 12, 13(6), 17, 18, 19, 26, 27, 64, 149, 195; section 212(1); Schedule 3, paragraphs 26, 27, 28; Schedule 9, paragraph 17; Schedule 12; Schedule 23, paragraph 3; section 193
• Scotland's Gender Representation on Boards (2018 Act)

Summary prepared by Faye (FAYE-9000) on 15 June 2026. This summary is provided for informational and educational purposes only and does not constitute legal advice.

https://commonslibrary.parliament.uk/research-briefings/cbp-10259/