Waiting for Guidance: how the Scottish Government should act now in response to the Supreme Court

Introduction

Today, the Scottish Government is meeting the Equality and Human Rights Commission (EHRC), following the judgment in the Supreme Court on 16 April, that ‘sex’ in the Equality Act 2010 means sex in the ordinary, biological sense, and does not include ‘certificated sex’, as acquired by a Gender Recognition Certificate.

The Court also stated that the Gender Recognition Act 2004 does not require that any particular piece of legislation ‘expressly disapplies’ a GRC from having effect. Instead, a GRC can be ignored ‘where the terms, context and purpose of the relevant legislation show… a clear incompatibility’ or because ‘provisions are made incoherent or unworkable.’ This has implications more generally across the statute book.

Scottish Government response

In a statement to the Scottish Parliament on Tuesday, the Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, relied heavily on the need for the Scottish Government to see revised EHRC “guidance”, due this summer, before taking any action in relation to the judgment. 

We assume this is a reference to the EHRC’s statutory Code of Practice on services, public functions and associations. The EHRC consulted on an updated draft of this last year (to which we provided evidence) with a view to issuing a revised version soon. There are various other relevant guidance documents issued by the EHRC, such as the statutory code on employment and separate technical guidance on schools¹. As far as we are aware, these are not currently subject to planned revision, although some will need to be updated in the light of the Supreme Court’s judgment.

The Code of Practice (at paragraph 1.5) notes that:

The Code does not impose legal obligations. Nor is it an authoritative statement of the law: only the courts and tribunals can provide such authority..

The Supreme Court’s judgment therefore takes priority over any EHRC Code, where the two conflict. The Code can at most “colour in” what the law requires.

The Scottish Government therefore has no excuse for any delay in taking action to ensure that public bodies falling within its responsibility are taking basic steps now to ensure that they are acting within the law. Given the widespread adoption of policies which replace sex with self-identified gender across the Scottish public sector, many will not be.

Urgent need for government direction

The need for immediate Scottish Government direction is underscored by misreporting of the judgment in the press and by several organisations. In a letter to The Herald, the former Director of the Equality Network (which strongly promoted gender self-identification in Scotland’s public sector), wrote that the practical effects of the judgment would depend on the EHRC guidance, and cautioned against a ‘hard-line’ interpretation. As noted above, the law takes precedence here. It is also apparent that many Scottish public bodies (here and here) are awaiting direction from the EHRC before taking further action.  

As the Scottish Government seems to be unclear about what direction it could be giving now, we have drafted the type of correspondence that we think that it could, if it wished, send out now, without waiting for any guidance from the EHRC. 

We are not lawyers and, unlike the Scottish Government, do not have the advantage of employing any. So this draft is simply our suggestion for what the Scottish Government should be asking its lawyers to review and sign off right now. It is not legal advice.

Other sources readers may wish to consult include:  

• Briefing | Supreme Court clarifies definition of “sex” in Equality Act | CIPD (a useful checklist of immediate actions for employers from the Chartered Institute of Personnel and Development)
• Ill-informed challenges to Supreme Court decision help nobody (Akua Reindorf KC, EHRC Commissioner, addresses misunderstandings about the judgment)
• For Women Scotland v Scottish Ministers: four lessons for employers – employment & discrimination (employment barrister David Green’s reflections on implications that may have been overlooked)
• Supreme Court judgment: summary and practical advice – Sex Matters (overview of the case, issues raised and practical issues to consider from human rights charity, Sex Matters)

DRAFT CIRCULAR PROPOSED BY MURRAYBLACKBURNMACKENZIE TO THE SCOTTISH GOVERNMENT

24 APRIL 2025

TO: CHAIRS AND CHIEF EXECUTIVES, SCOTTISH PUBLIC BODIES

SUPREME COURT JUDGMENT IN FOR WOMEN SCOTLAND V THE SCOTTISH MINISTERS

Further to this judgment, we ask that you take immediate action to assure yourself that relevant policies and practices in your organisation are lawful, taking your own legal advice as necessary. Failure to take such action may leave your organisation, whether as an employer or a service provider, exposed to the risk of claims for sex discrimination.

Various provisions in the Equality Act 2010 allows bodies to provide services separated by sex, or for one sex only, or differently for each sex, or to designate roles for one or other sex, or otherwise to treat women and men differently, in certain contexts, without contravening the general prohibition on sex discrimination.

The judgment makes clear that for these protections to apply, organisations must follow the definition of “sex”, “woman” and “man” in the Equality Act as now set out by the Court. That is, that it is always an ordinary, biological meaning. Any other approach will by definition create a mixed sex outcome.

The Supreme Court’s judgment means that policies or practices that treat men and women distinctly should not conflate the protected characteristic of sex with that of gender reassignment. Organisations should, therefore, identify now any policies or practices which do this, and withdraw, review and revise them as necessary.

Where individuals covered by the protected characteristic of gender reassignment are affected by any changes to policy or practice made in the light of Supreme Court’s judgment, organisations should, at the same time, consider what other steps they are already taking, or could reasonably take, to comply with their responsibilities under the Equality Act towards those individuals.

The Equality Act provides protection against sex discrimination claims when complying with other statutory obligations, such as those requiring separate sex facilities, at work (such as the Workplace Health, Safety and Welfare Regulations 1992)  or in schools (such as the School Premises (General Requirements and Standards) (Scotland) Regulations 1967). This protection will only apply provided the definition of sex in the Act is being properly followed. In considering any changes to policy or practice, organisations should also bear in mind that in certain circumstances failure to provide adequate single-sex services or facilities as defined in the Act may expose them to the risk of claims of sex discrimination.

Organisations will wish to take into account relevant existing and forthcoming guidance from the Equality and Human Rights Commission, but the Supreme Court’s judgment will take priority in the courts over any EHRC Codes or other guidance, where the two conflict.

Organisations should therefore not put off reviewing their policies and practices against the expectation of any receiving updated guidance from the Commission.

Where data is collected in order to comply with any duties under the Equality Act, such as the Public Sector Equality Duty, organisations should now ensure that this includes as necessary data on sex as defined in that Act. Further information is available in the  Independent review of data, statistics and research on sex and gender.

Organisations should consider any other relevant policies, including those delivering their responsibilities under Public Sector Equality Duty, and  ensure that these reflect the interpretation of the protected characteristic of sex, woman and man, as now set out in the judgment. This should include ensuring that policies do not prevent any employee or other person from being able to discuss policies or practices related to the Equality Act, or other legislation, when they need to do so, using the language in the Act with its proper meaning.

The Court has also noted that  the Gender Recognition Act 2004 does not require that any particular piece of legislation expressly disapplies a GRC from having effect. It has set out that a GRC will not have an effect where the terms, context and purpose of the relevant legislation show a clear incompatibility or because provisions are made incoherent or unworkable.  If your organisation draws on other legislation containing the term sex, or related terms, it should therefore also take its own legal advice about the implications of the Court’s judgment here.

[Here the Scottish Government could add text drawing attention to any powers of direction or intervention it has in relation to certain public bodies, such as health boards, in the event that they do not act swiftly to stay within the law.]

Putting its own house in order

The logic of the draft also of course applies to the Scottish Government’s own internal policies as an employer.

The Scottish Government is, further, responsible for guidance on schools which falls within the scope of the judgment, and which is also now in conflict with the declarator agreed yesterday in the Court of Session in a case concerning Scottish Borders Council. It is also jointly responsible for guidance for the NHS, currently in draft form, which the case of Peggie v NHS Fife had already demonstrated required revision, and there may be other guidance the Scottish Government issues directly, or jointly with other bodies, to which the points below would apply.

As noted in our response  to the Scottish Government statement on Tuesday (see below), it is especially urgent to address the policies adopted by the Scottish Prison Service, which still bear the imprint of the Equality Network, who ‘strategised that by working intensively with the Scottish Prison Service to support them to include trans women as women on a self declaration basis within very challenging circumstances, we would be able to ensure all other public services should be able to do the same.’²

Notes

1. The EHRC ‘Technical guidance for schools in Scotland’ was last updated in 2023. It is not a statutory code, but the EHRC says that ‘it may be used as evidence in legal proceedings. If education providers follow this Guidance, it may help them to avoid the court making an adverse decision in such proceedings’. As with the statutory Codes, in any conflict between it and the Supreme Court’s judgment, the Court’s view will take priority. ↩︎
2. James Morton, then Director of the Scottish Trans Allianace, a project of the Equality Network, writing in Trans Britain (2018, p.233), also quoted here. ↩︎