Jennifer Scott and Oliver Newbery, in our Charities & Education team, provide an overview of the outcome of and reactions to recent landmark case.
The recent case of Women Scotland Ltd v Scottish Ministers assessed whether a trans woman with a full Gender Recognition Certificate ('GRC') should be treated as a woman for the purposes of achieving the gender representation objective of 50% women on public boards.
What was the case outcome?
The Judges ruled unanimously that ‘sex,’ ‘man,’ and ‘woman’ means their biological sex. In coming to this decision, the judges found that a certificated sex interpretation would undermine ability to analyse and address the separate needs of women and trans people. Therefore, a trans woman with a GRC does not fall within the definition of ‘woman’ for the purposes of sex discrimination under the Equality Act 2010 (‘EA 2010’).
Taking a more holistic view the case set out that changing legal gender does not affect the interpretation of sex in the EA 2010 separating gender reassignment and biological sex in anti-discrimination law.
Equality Watchdog update following the case
The Equality and Human Rights Commission (‘EHRC’) provided an interim update in April 2025 following the Supreme Court decision with the caveat that the update was not guidance. This update received significant news coverage with headlines focusing on the equality watchdog’s ‘guidance’ on single-sex spaces. The update stated that trans women should not be permitted to use the women's facilities and trans men should not be permitted to use the men's facilities. EHRC explained that facilities which were no longer single must be open to all users of the opposite sex. The interim update has since been removed from the EHRC’s website, which states that duty bearers should: ‘continue to take specialist legal advice, as before, on their obligations under any relevant legislation, including the Equality Act 2010 and the Human Rights Act 1998 [and] use the new code when it is approved by Parliament.’
How have Charities and Organisations reacted?
Many charities and organisations have been waiting for the Equality and Human Rights Commission to provide conclusive guidance on how to implement the ruling. The Minister for Women and Equalities, Bridget Philipson, received the draft code on the 4 September 2025. As of the date of writing the draft code is still waiting approval. After gaining approval it will be laid before Parliament.
In December both the Women’s Institute (‘WI’) and Girlguiding made the decision not to allow trans women to join their organisations.
The National Federation of Women’s Institute (NFWI) chief executive Melissa Green said the following:
“To be able to continue operating as the Women’s Institute, a legally recognised women’s organisation and charity, we must act in accordance with the Supreme Court’s judgment and restrict formal membership to biological women only. However, this change is only in respect to our membership policy and does not change our firm belief that transgender women are women.”
Girlguiding cited that their charity object to benefit girls and women meant that they had no choice other than to follow the legal definition set out by the Supreme Court.
What does this mean in practice?
Charities that exclusively provide benefits for women or men may need to re-examine their constitution to make it compliant with the Supreme Court ruling.
Currently, government advice is that ‘associations should set their policies in line with the law. If organisations are uncertain as to how to apply the Equality Act, they should obtain legal advice.’
In the absence of guidance from the Equality and Human Rights Commission and guidance from the Charity Commission, charities are facing a difficult decision of whether to act or wait for guidance. This is a complex and politicised area of law where charities should seek professional legal advice.
We will continue to review the evolving status and the impact it will have on the third sector.
For further information or legal advice on complying with your Charity’s Constitution or creating an effective Equality policy, please email law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
