UK Supreme Court ruling on meaning of sex in Equality Act: update

Introduction 

This note provides an update on the steps the Scottish Government is taking following the UK Supreme Court judgment of 16 April 2025 on the meaning of sex in the Equality Act 2010. 

The Court ruled that in the Equality Act 2010, ‘sex’ means biological sex. The Court also stated that a Gender Recognition Certificate does not change a person’s legal sex for the purposes of the 2010 Act. The judgment takes immediate effect in law. 

The Scottish Government does, of course, accept the judgment of the UK Supreme Court. 

Role of the Equality and Human Rights Commission (EHRC) 

The EHRC is the independent equality human rights regulator for Great Britain. The EHRC enforces the Equality Act 2010, and has statutory powers to intervene when the law is not followed. 

The EHRC publishes statutory Codes of Practice and associated guidance that provide practical interpretations of the Equality Act 2010 to assist bodies to better understand and comply with their legal obligations under the Act.  

Following the UK Supreme Court judgment, the EHRC has confirmed that it is updating its statutory Code of Practice. The EHRC has stated that they will provide an updated draft Code of Practice on services, public functions and associations to the UK Government for approval, to then be laid before the UK Parliament. The Secretary of State will be required to make a commencement Order to formally bring the Code of Practice into force. 

The Code will support service providers, public bodies and associations to understand their duties under the Equality Act 2010 and put them into practice.

In the meantime, the EHRC published an interim update on the UK Supreme Court judgment. The EHRC have been clear that this update is not guidance, it is intended to highlight the main consequences of the judgment. Read an interim update on the practical implications of the UK Supreme Court judgment., EHRC. 

The Scottish Government has met with the EHRC and will continue to engage as they update the Code of Practice. 

EHRC consultation 

The EHRC is now consulting on the Code of Practice for services, public functions and associations, following the UK Supreme Court judgment. The consultation will close on the 30 June 2025. The consultation is gathering feedback on the proposed changes to the Code, seeking views on whether the updates clearly articulate the practical implications of the judgment and enable those who will use the Code to understand, and comply with, the Equality Act 2010. 

The Scottish Government encourages bodies and individuals to engage directly with the EHRC on this issue as part of the consultation process. Read more: Code of practice for services, public functions and associations: consultation 2025, EHRC.

Preparedness and readiness 

The Scottish Government has established a Short Life Working Group to act on the UK Supreme Court judgment, recognising the role of the EHRC and that an updated Code of Practice is being prepared. The group consists of senior civil servants representing all relevant portfolios across government. The aims of the group are to: 

• ensure that there is a consistent approach to the understanding of the ruling; 
• review legislation, guidance and policies within Scottish Government portfolios that the ruling impacts on; and
• ensure the Scottish Government is ready and prepared once the EHRC’s revised Code of Practice is published. 

This work will not be done in isolation, and respective policy leads will engage with public bodies to update on our work and inform our own thinking. 

The Scottish Government strongly encourages bodies to undertake their own review relevant to their organisation and services in order to help inform any necessary practical steps required when the EHRC publish their updated Code of Practice.   

It is not appropriate for the Scottish Government to issue specific guidance in advance of the EHRC’s publication given that they are the regulator and enforcer of the Equality Act 2010. Doing so increases the risk of inconsistency with the updated Code of Practice that is being prepared by the EHRC. The Scottish Government has informed the EHRC of our approach. 

Public bodies should satisfy themselves that they are compliant with the law and that they are reviewing all necessary guidance and policies to prepare themselves for the EHRC’s updated Code of Practice. 

The Scottish Government’s commitment to equality 

The Scottish Government remains committed to growing strong communities across Scotland, built on a solid foundation where everyone enjoys the realisation of their human rights. 

The UK Supreme Court stated clearly that the judgement should not be read as a triumph of one or more groups in our society at the expense of another. The Scottish Government supports this view. 

The judgment does not remove protection from trans people, with or without a Gender Recognition Certificate. The judgment makes it clear that trans people continue to be protected from discrimination and harassment based on the protected characteristic of gender reassignment. 

Discrimination and harassment against all people with one or more protected characteristic, in breach of the Equality Act 2010, is illegal and entirely unacceptable. 

May 2025