‘Biological’ definition of woman: implications of Supreme Court decision for schools

In the recent case For Women Scotland v The Scottish Ministers, the Supreme Court (“SC”) ruled that ‘sex’ in the Equality Act 2010 (the “Act”) refers to biological sex.

The definition of ‘woman’ therefore doesn’t include transgender women with a gender recognition certificate (“GRC”).

Schools should be aware of this decision, both in their capacity as employers and as education providers with obligations to safeguard and promote the welfare of children and young people.

The Supreme Court’s decision on biological sex in more detail

The Act makes it unlawful to discriminate against a person because of a protected characteristic. The protected characteristic of sex makes it unlawful to discriminate against a person because they are a man or a woman. The Act however isn’t clear whether “sex” means biological sex or legal (certified) sex.

The SC held that interpreting the meaning of ‘sex’ as a person’s certificated sex would obscure the definitions of ‘man’ and ‘woman’, leading to an inconsistent interpretation of the Act. This is particularly relevant to sections of the Act which only make logical sense where the biological definition of sex is used. For example, protections for women which relate to pregnancy and maternity, can only affect biological women. Additionally, interpreting the meaning of ‘sex’ as a person’s certificated sex would mean that a biological woman living as a transgender man (with a GRC) would be excluded from those protections, despite their capacity to be pregnant.

The SC held that including certificated sex in the definition of ‘sex’ for the purposes of the Act would cause further difficulty regarding single sex spaces and provisions. Under the Act, the provision of separate sex services is not unlawful where provision of joint services would be less effective. Using the example of female-only spaces, if ‘sex’ means certificated sex, institutions would have to allow transgender women with a GRC to use those facilities. The SC held that this is not workable as it may be difficult or impossible for the service providers to distinguish between transgender women with a GRC and those without. It would also be difficult to see how those separate provisions could be seen as more effective, where service providers allow entry to transgender women with a GRC even if they present as biological men. The SC held that if that were the case, it would be unreasonable to refuse male presenting biological men.

The SC judgement specifically addresses the issue of single-sex higher education institutions. They concluded that it was Parliament’s intention to permit single-sex higher education institutions, and that it wouldn’t be rational to require those institutions to allow transgender individuals with a GRC but refuse those without. The SC held that inclusion of GRC holders would afford them greater rights and an unfair advantage over the transgender community who don’t hold a GRC. It also wouldn’t be practical as institutions can’t lawfully ask someone to disclose whether they have a GRC.

That said, the SC emphasised that,  transgender individuals, whether holding a GRC or not, will still be protected from direct and indirect discrimination, and harassment, under the protected characteristic of ‘gender reassignment’.

How might the Supreme Court’s decision affect your school?

Whilst children and young persons under the age of 18 can’t legally obtain a GRC, schools will need to consider all those in their community including staff and pupils when considering any next steps.  Concerns have been raised that the SC decision will increase tensions between gender presentation and biological sex, making it even more difficult for schools to balance the rights and wishes of transgender pupils as well as staff.

In 2023, the previous government published draft guidance on how to support gender questioning pupils,making it clear that schools must protect single-sex spaces i.e. toilets, accommodation and changing rooms and the judgment of the SC is broadly in line with the draft guidance.

Whilst schools can lawfully restrict access to toilets and changing rooms based on biological sex, and admissions policies can lawfully use biological sex as a basis for entry, they should continue to take a cautious approach to gender issues, and ensure good communication is maintained between the school and parent/pupil. Schools should carry out risk assessments and try to accommodate transgender pupils and their wishes, for example, through the provision of gender-neutral toilets or alternative changing areas or times, where possible. The same approach should be taken for members of staff, especially in both the delivery of intimate care to pupils and safeguarding, where it’’s lawful for these roles to be designated by biological sex.

Schools should remain mindful that transgender pupils and members of staff are still protected under ‘gender reassignment’, and any issues should be treated with the same sensitivity. The Act prohibits discrimination and victimisation of those who are covered by the protected characteristic of ‘gender reassignment’. Under the Act, a person will be protected on the basis of gender reassignment if they are proposing to undergo, are undergoing, or have undergone a process (or part of a process) for the purpose of reassigning their sex. This means that pupils and staff don’t have to be undertaking a medical procedure to change their sex  to be protected from gender reassignment discrimination.

On 25 April 2025, the Equality and Human Rights Commission issued an interim update on the practical implications of the SC judgment. Further guidance is expected which should provide greater clarity and schools should keep up to date with the published guidance, updating their policies and procedures accordingly. Training staff and educating the school community about any policy changes will be important.

We’re also expecting the draft guidance on gender questioning children to be finalised this year; hopefully in advance of or as part of the next update to Keeping Children Safe in Education. We will keep you updated but  if you have any queries in relation to the SC ruling or this issue generally, please contact Kristine Scott or Paul Watkins.