Advisory for Employers: Responding to the Supreme Court Ruling in FWS v The Scottish Ministers

Advisory for Employers: Responding to the Supreme Court Ruling in FWS v The Scottish Ministers

On 16 April 2025, the UK Supreme Court delivered its unanimous judgment in For Women Scotland Ltd v The Scottish Ministers, concluding that the legal definition of “woman” in certain legislative contexts refers exclusively to individuals who are biologically female. The decision clarifies that this definition does not include transgender individuals, even if they hold a Gender Recognition Certificate (GRC).

This ruling has prompted both legal debate and emotional responses across the UK. As businesses and HR teams assess its impact, there are two core lenses to consider:

1. The legal framework – What this means for policies, practices, and Equality Act obligations.
2. The human impact – How this may affect employees, especially those from transgender and non-binary communities

What Has the Court Said?

The ruling underscores that:

• The Equality Act protects “sex” and “gender reassignment” as distinct protected characteristics.
• Attempts to merge or redefine these through legislation (as was attempted in the Gender Representation on Public Boards (Scotland) Act) are unlawful.
• Transgender individuals remain protected from discrimination, harassment, and victimisation under the Equality Act 2010, “gender reassignment”.
• Associative discrimination also applies – transgender individuals can raise claims even if they do not directly hold the protected characteristic in question.
• The Court confirmed that trans individuals may still be lawfully excluded from single-sex services or spaces – including toilets, changing rooms, and prayer rooms – if such exclusion is “proportionate” and serves a legitimate aim. This applies to trans women and trans men, depending on the nature of the space.

What Does This Mean for Employers?

This decision does not create new rights or remove existing protections. The Court strongly affirmed that Trans individuals continue to be protected under the Equality Act. For most employers, there is no immediate requirement to change policies or workplace arrangements.

However, the ruling may bring added complexity around:

• The use and design of single-sex facilities. Guidance for employers has yet to be issued on exclusion, and what’s proportionate and lawful.
• How language is framed in internal policies
• Potential increases in claims of associative discrimination
• The emotional toll on employees, particularly colleagues from the transgender and non-binary communities.

Don’t Rush – Stay Informed

HR teams and employers alike may be feeling the weight of expectation to act quickly and decisively. Yet in moments like this, careful consideration is more valuable than rapid response. The ruling has clarified a point of law, but its practical implications for workplace inclusion and gender identity are still evolving.

It remains important not to rush. Further guidance will be needed to understand how this decision aligns with everyday working life. For now, HR professionals are encouraged to remain informed, act with empathy, and avoid making assumptions as they navigate the uncertainty.

Understanding the impact for (or supporting) the Trans, Non-Binary & Intersex communities.

The response from the trans community has been one of concern, disappointment, and anxiety. TransActual UK, among other organisations, described the ruling as a step backwards that may embolden discriminatory behaviours and deepen societal divides. The decision risks contributing to a climate of fear, exclusion, and misunderstanding.

It’s important to remember:

• Trans people are still protected from discrimination under the Equality Act.
• The decision does not mean employers should roll back on inclusive policies or workplace protections.
• The ruling may lead to confusion or distress for trans and non-binary colleagues. Sensitivity, clarity, and leadership are essential.
   

Suggested Supportive Response from Employers

Employers may wish to consider a message of solidarity. For example:

“We understand that the recent Supreme Court ruling may be unsettling for some colleagues. We want to reaffirm that our organisation continues to champion equality, inclusion, and dignity for all. We are committed to ensuring that every individual feels safe, represented, and respected in our workplace.”

Additionally, encourage line managers to:

• Check in with their teams
• Be available to listen
• Signpost to relevant support services, such as EAPs or mental health resources
• Familiarise themselves with key policies, such as Equal Opportunity and Dignity at Work, and the reporting mechanisms in place to support a safe and respectful environment for all.
   

In the wake of the ruling, the CIPD has published a list of important considerations that employers may wish to reflect on as they review existing policies and practices. These are designed to help organisations navigate the legal clarity while continuing to foster inclusive, respectful workplaces. You can access their guidance here: CIPD Insight – Definition of Sex in the Equality Act.

 At JourneyHR, we’re also here to support businesses in thinking through these implications sensitively and practically. 

Culture and Leadership: Your Voice Matters

This moment calls for thoughtful, inclusive leadership. While the ruling speaks to a specific legal interpretation, how you respond speaks to your culture. We encourage leadership teams to use this moment not just for compliance, but for reflection and reaffirmation of your values.

You might consider:

• Exploring meaningful ways to support the transgender and non-binary communities, such as inviting guest speakers, partnering with relevant charities, or engaging in awareness initiatives.
• Holding space for employee voices.
• Hosting open forums or Q&A sessions with senior leaders and HR
• Sharing stories that reinforce belonging and respect
• Investing in ongoing inclusivity training to foster understanding, empathy, and support for all employees
   

Final Thoughts

This ruling, while legally significant, should not mark a retreat from inclusion. Rather, it is a reminder of the delicate balance between legal compliance and cultural leadership.

Employers must remain vigilant and proactive to ensure that no one feels left behind or unsafe in their workplace.

This is a time for care, not complacency. Be informed. Be sensitive. Lead with clarity, and lead with compassion.