For Women Scotland Ltd v The Scottish Ministers

Summary of Article

The article examines the implications of the UK Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 for schools, particularly in relation to the Equality Act 2010 and how “sex” is interpreted in law.

The Court clarified that “sex” in the Equality Act 2010 means biological sex, not acquired gender, even for people with a Gender Recognition Certificate (GRC).
Unless a person has a full GRC, their legal sex is their biological sex. The decision predominantly affects adults, as almost no school-age pupils would have a GRC.
The judgment does not change the fact that gender reassignment remains a protected characteristic under the Act.

A girls’ school does not have to admit trans girls (who are biological boys).
A boys’ school does not have to admit trans boys (who are biological girls).
However, these schools cannot exclude pupils of their own biological sex who are trans (e.g., a girls’ school cannot refuse a biological girl who identifies as a trans boy).

When assessing discrimination involving a trans pupil, the comparator must be a pupil of the same biological sex.

Regulations in England and Wales require separate facilities for boys and girls aged 8+ (toilets) and single-sex changing facilities for pupils aged 11+.
Based on the Supreme Court judgment and EHRC interim guidance:
- Trans girls (biological boys) should not use girls’ toilets or changing rooms.
- Trans boys (biological girls) should not use boys’ facilities.
- Schools should provide alternative arrangements where necessary.

Mixed schools with boarding can admit only one biological sex to boarding places, and the judgment confirms “sex” here means biological sex.

Under section 195 of the Equality Act, competitive sports can be separated by sex where physical differences create a competitive advantage.
Schools may therefore:
- Run separate sports for biological boys and biological girls.
- Exclude trans pupils from competing with the opposite biological sex where the activity is “gender-affected”.

The Court held that treating “women” as a mixed group of biological females and trans women would make data collection incoherent.
Therefore, PSED and positive action must also treat sex as biological sex.

Existing 2018 guidance on sex separation in mixed schools remains relevant: any sex-based separation must be justified unless a statutory exception applies.
Draft 2023 DfE guidance on gender-questioning children remains unpublished; its final form will shape future practice but currently offers no legal certainty.