‘We want the world and we want it now!’ yelled the Doors in 1967. More realistically, per the Rolling Stones in 1969, ‘You Can’t Always Get What You Want’. But, as philosopher Bertrand Russell remarked, the beginning of wisdom is ‘to understand the actual world as it is, not as we should wish it to be…’.
However, despite the definitive Supreme Court judgment of 16 April 2025 in For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [2025] UKSC 16, which definitively held that the terms ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010 refer to biological sex, some, like Humpty Dumpty in Lewis Carroll’s Through the Looking Glass, seem to have had difficulty with this.
Humpty’s view was: ‘When I use a word, it means just what I choose it to mean – neither more nor less.’ This is simply a question of power: ‘which is to be master – that’s all’. But, pace Mr Dumpty and any of his followers, it is the Supreme Court which had, and unanimously exercised, the material definitional power. And its landmark judgment was on 21 May 2026 followed up by the Equality and Human Rights Commission’s draft updated Statutory Code of Practice. This is designed to ‘make the law clearer for service providers and others, protecting people’s rights across England, Scotland and Wales’, by taking a practical and proportionate approach to ensure that everyone can access services safely, free from harassment, and with dignity.
Chapter 1 of Part 2 of the Equality Act 2010 (EA) details the characteristics protected under the act (age, disability, gender reassignment, marriage and civil partnerships, race, religion or belief, sex and sexual orientation). Chapter 2 specifies prohibited conduct, including direct and indirect discrimination against those with protected characteristics. Under section 7(1) of the EA: ‘A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.’ Section 7(2) provides that a ‘reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment’. And by 7(3), ‘in relation to the protected characteristic of gender reassignment – (a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person; (b) a reference to persons who share a protected characteristic is a reference to transsexual persons.’
The protected characteristic of sex is defined as follows in section 11 of the EA: ‘(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; (b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.’ And, by section 212(1) (General interpretation): man means a male of any age; and woman means a female of any age.
Under section 9(1) of the Gender Recognition Act 2004 (GRA 2004), where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman). Section 9(3) states that this is ‘subject to provision made by this act or any other enactment or any subordinate legislation’.
Supreme Court judgment
The court was clear that its judgment was simply concerned with establishing the correct interpretation of the EA, which seeks to give statutory protection to those at risk of unlawful discrimination. The principal question addressed by the court was the meaning of the words which parliament has used in the EA in legislating to protect women and members of the trans community against discrimination. Its task was to see if those words could bear a coherent and predictable meaning within the EA consistently with the GRA 2004.
In the court’s view, the EA recognises sex and gender reassignment as distinct and separate bases for discrimination and inequality, giving separate protection to each. And ‘the core provisions referring to sex, man or woman are not capable of being read fairly and consistently with the terms of section 9(1) and (2) of the GRA 2004 without defeating their purpose and meaning. The definition of these terms contained in section 212(1), when applied in particular to section 11 (the protected characteristic of sex which was at the heart of the case) is not capable of being interpreted on the basis of certificated sex.’ For sex has its biological meaning throughout this legislation, ‘woman’ always and only meaning a biological female of any age in section 212(1). Section 9(3) of the GRA 2004 disapplies the rule in section 9(1) ‘where the words of legislation, enacted before or after the commencement of the GRA 2004, are on careful consideration interpreted in their context and having regard to their purpose to be inconsistent with that rule’.
In the court’s view, it followed that ‘a biological male of any age cannot fall within this definition; and “woman” does not mean or sometimes mean or include a male of any age who holds a GRC [gender recognition certificate] or exclude a female of any age who holds a GRC. To reach any other conclusion would turn the foundational definition of sex on its head and diminish the protection available to individuals and groups against discrimination on the grounds of sex’. But ‘an individual will still be entitled to protection against discrimination on the grounds of sex on its biological meaning. Thus, the objective of non-discrimination between the sexes is maintained, while at the same time protecting individuals with a GRC from non-discrimination and without seriously undermining the intention behind the GRA 2004’.
The court consequently concluded that, having examined the language of the EA, its context and purpose, the words ‘sex’, ‘woman’ and ‘man’ in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man. These and the other material provisions cannot properly be interpreted as also extending to include certificated sex without rendering them incoherent and unworkable. And the Supreme Court’s biological sex reading, which was concluded to be ‘the only correct one’, ‘does not cause disadvantage to trans people, with or without a GRC’. For, in the light of case law interpreting the relevant provisions, they would be able to invoke the provisions on direct discrimination and harassment, and indirect discrimination. A certificated sex reading is therefore not required to give them those protections.
Equality and Human Rights Commission Draft Code of Practice for services, public functions and associations, 2026
This 342-page draft document, issued on 21 May 2026, aims to give organisations ‘clear, accessible guidance on how to implement equality law’. It seeks to put flesh on the bones of the EA as interpreted by the Supreme Court in its pivotal judgment of 16 April 2025. It covers key practical aspects of managing the law and its processes, including rights and obligations, direct and indirect discrimination and each of the protected characteristics. The document also addresses services and public functions, exceptions and enforcement. On issuing the code, the EHRC and Bridget Phillipson MP said that: ‘Organisations should continue to follow the law as clarified by the Supreme Court, taking specialist legal advice if needed.’
On gender reassignment (at paragraph 2.39), the code clarifies that: ‘A trans person is protected against gender reassignment discrimination and harassment at any stage in their transition process, even if they have only started but not completed a stage.’ And: ‘A trans person does not need to be proposing to undergo, be undergoing or have undergone medical treatment or surgery to be protected. It also does not matter whether a trans person has applied for, or obtained, a gender recognition certificate.’
The document also clarifies (at paragraph 2.43) that: ‘There is no minimum age for the protected characteristic of gender reassignment, which means that children and young people are protected if they are proposing to undergo, are undergoing, or have undergone a process of gender reassignment.’ But (at 2.44): ‘People with non-binary or gender fluid identities will only be protected if they meet the definition of gender reassignment as set out in the act.’ However, they may also be protected against discrimination by perception (paragraphs 4.51-4.53).
The code also makes clear at 2.49 (following the Supreme Court judgment) that ‘a GRC does not change a person’s legal sex for the purposes of the Equality Act 2010’. For: ‘The judgment held that “sex”, “woman” and “man” mean, respectively, biological sex, biological woman and biological man for the purposes of the Equality Act.’ And: ‘The judgment uses the expression “biological sex” to describe the sex of a person at birth.’ However, per paragraphs 2.52 and 2.53, trans people will be protected from gender reassignment and sex discrimination whether they have a GRC or not.
Section 13 of the code deals with exceptions, including, for example (at paragraph 13.92 et seq), providing separate services for women and men. This is lawful if a joint service for women and men would be less effective and ‘providing the service separately to women and men is a proportionate means of achieving a legitimate aim’. Paragraph 13.107 indicates that it ‘is likely to be reasonable for a woman to object to the presence of a man if she will be getting undressed or in a vulnerable situation when she is using the service’, for example, (at 13.108): ‘Women-only communal changing rooms in a sports facility.’ As to toilets, paragraph 13.140 suggests the possibility of adapting a service to enable the service to be used by people of both sexes – for example, toilets in individual lockable rooms usable by both sexes. But (says paragraph 13.148): ‘It is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use.’ Moreover, (at 13.170): ‘It is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets…’.
Paragraph 13.116 advises that ‘when considering the benefits of offering a single-sex service, the provider should consider whether women’s safety, privacy and/or dignity would be at risk in the service if it were shared with men. Material factors would include whether: women are likely to be in a state of undress; there will be limited ability for women to leave or to choose an alternative service; the service is provided as a result of, or connected with, male violence against women and whether the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage. In such circumstances, the benefits of offering a separate or single-sex service will be likely to outweigh other considerations in the balancing exercise.’
Since human beings come in all shapes, sizes, dispositions, characteristics, temperament and predilections, managing the requirements of the Equality Act is inevitably complex. However, the code should assist with its practical illustrations. Nevertheless, the bottom line remains the Supreme Court’s decision that the terms ‘man’, ‘woman’ and ‘sex’ in the EA refer to biological sex.
Nicholas Dobson writes on local government, public law and governance
