For those of us involved in the governance and operation of cultural organisations, understanding our legal responsibilities is fundamental to good governance. The Equality Act 2010 (EqA 2010) is a cornerstone of these responsibilities, requiring us to ensure fairness and prevent discrimination across various protected characteristics. A recent Supreme Court judgment has provided significant clarity on one of these characteristics: “sex”.

The ruling, in the case of For Women Scotland Ltd v Scottish Ministers, specifically examined how the terms “sex”, “woman”, and “man” should be interpreted within the context of the EqA 2010. This has implications for how cultural organisations think about policies, facilities, and group activities.

The Supreme Court’s Interpretation: Biological Sex as the Definition of “Sex”

The Supreme Court unanimously held that, for the purposes of the Equality Act 2010, the words “sex”, “woman”, and “man” refer to biological sex.

The court’s reasoning was rooted in statutory interpretation. They found that Parliament, when enacting the Sex Discrimination Act 1975 (the precursor to the EqA 2010), intended these words to mean biological sex. This meaning, the court concluded, was not altered by subsequent legislation, including the Gender Recognition Act 2004 (GRA 2004).

Crucially, the court determined that interpreting “sex” to include “certified sex” (the legal sex acquired via a Gender Recognition Certificate or GRC) would make many parts of the EqA 2010 incoherent and unworkable. Provisions relating to pregnancy and maternity, single-sex spaces and services, associations and charities and positive action measures only make sense, in the court’s view, if “sex” means biological sex.

Therefore, under the protected characteristic of sex as defined in the EqA 2010, the court found that a trans woman who holds a GRC is not legally considered a woman. Similarly, a trans man with a GRC is not legally considered a man under this characteristic.

The court also highlighted the practical difficulty for organisations if sex-based rights depended on knowing who holds a GRC, noting that GRCs are confidential certificates and it’s often impossible to distinguish between trans people with or without a GRC.

What does ‘Biological Sex’ mean?

The judges seem to assume that biological sex refers to the visible sex of a person at birth, understood as binary, being either male or female. The court did not hear any evidence from those who have studied biology since the 1970s, nor from experts in chromosomes, hormones, anatomy or physiology. The court’s judgment is therefore (in my view) less certain than other commentators have indicated, and it is highly likely that there will be more court cases, including perhaps some launched by those who feel that this interpretation threatens rights granted under the Human Rights Act.

Continuing Protections: Gender Reassignment and Other Rights

It is vital to understand that this judgment does not remove or diminish the protections that trans people have under the Equality Act 2010. The court was explicit that the ruling focused solely on the interpretation of “sex” within the Act’s framework.

Trans people remain fully protected under the separate protected characteristic of gender reassignment. This protection covers individuals who are proposing to undergo, undergoing, or have undergone a process to reassign their sex, and it applies regardless of whether they hold a confidential GRC. For the significant majority of trans people who do not have a GRC, their legal position under the EqA 2010 regarding gender reassignment discrimination is unaffected by this ruling on the definition of sex.

Furthermore, trans individuals continue to be protected under other aspects of the EqA 2010:

• Direct and Indirect Discrimination
• Perceived Sex Discrimination
• Associative Discrimination
• Harassment

As highlighted by Stonewall’s CEO, Simon Blake, while the ruling has caused concern, the court “strongly and clearly re-affirmed the Equality Act protects all trans people against discrimination, based on gender reassignment, and will continue to do so”. The Equality and Human Rights Commission (EHRC) also welcomes the clarity while acknowledging the importance of the ruling for those whose rights are affected and stressing that trans people’s rights “must be respected”.

Practical Considerations for Cultural Governance

In theory, this ruling provides clarity, which allows organisations to interpret and apply the EqA 2010 more predictably. Cultural organisations should consider the implications for their governance and operations:

Single-Sex Spaces and Services: The EqA 2010 includes exceptions allowing for separate or single-sex services and spaces for reasons of privacy, safety, autonomy, and dignity. The ruling confirms that these exceptions can lawfully permit the exclusion of individuals based on “biological sex”, regardless of GRC status. This is particularly relevant for facilities like changing rooms, toilets, or potentially specific services or activities designated for one sex. The EHRC is currently reviewing and updating its guidance and codes of practice on single-sex services in light of this judgment.

Single-Sex Associations and Activities: The EqA 2010 permits associations with 25 or more members to restrict membership to persons who share a protected characteristic. Single-sex charities can also restrict benefits. The ruling clarifies that “sex” in this context means “biological sex”. This means a cultural group could lawfully restrict membership or participation in an activity to biological women or biological men, for example, a historical society focusing on the works of female playwrights or a choir specifically for male voices, where “male” refers to biological sex. However, just because the EqA 2010 permits such restrictions, there is no rule to say that an organisation must apply these restrictions.

Policies and Procedures: Review your organisation’s equality, diversity, and inclusion policies, as well as codes of conduct. Ensure they accurately reflect the protected characteristics under the EqA 2010 (including both sex, meaning “biological sex”, and gender reassignment). Explicitly prohibit discrimination and harassment based on all protected characteristics.

Data Collection: If your organisation collects diversity data, particularly for monitoring equality impacts or for the Public Sector Equality Duty (PSED) if applicable, be mindful of how data on “sex” is collected and used. The court noted that collecting data based on “certified sex” would create “confusing” and “heterogenous groupings” that may obscure the distinct disadvantages faced by biological women or trans people as separate groups.

The Future

The Supreme Court’s judgment provides some insights on a complex issue within the Equality Act 2010, but may not provide the clarity that many commentators and politicians have referred to. For cultural organisations, it reinforces that “sex” as a protected characteristic refers to “biological sex”, particularly in the context of single-sex spaces, services, and associations.

However, this legal clarity exists alongside the fundamental requirement to treat all individuals, including trans people, with dignity and respect, and to protect them from discrimination and harassment under the protected characteristic of gender reassignment and other provisions of the Act.

Cultural organisations will need to pay close attention to forthcoming updated guidance from the EHRC. Our shared goal in the cultural sector remains fostering environments where everyone involved – performers, artists, volunteers, staff, freelancers and audiences – feels welcome, safe, and able to participate fully.

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Please note: This blog post provides information based on the Supreme Court judgment and its implications. It is not intended as legal advice.