On 16 April 2025, the UK Supreme Court delivered a landmark judgment in For Women Scotland Ltd v The Scottish Ministers that has clarified the legal meaning of “sex” in the Equality Act 2010. In a unanimous decision, the Court held that references to “man,” “woman” and “sex” in the Act mean biological sex as assigned at birth and do not include a change of sex for the purposes of the Act even where an individual holds a Gender Recognition Certificate (GRC). This clarification has significant implications for small businesses, particularly in areas such as workplace facilities, services offered and recruitment practices.
What the Supreme Court Ruling Actually Says
While the Equality Act 2010 protects individuals from discrimination on a number of grounds, it has long been accepted practice that someone with a GRC, a legal document confirming a person’s acquired gender under the Gender Recognition Act 2004, would be treated as their acquired gender for the purposes of the Act. The Supreme Court’s ruling rejects this interpretation for the sex protected characteristic. Instead, the Court concluded that the ordinary meaning of “sex” in the Equality Act refers to biological sex (male or female at birth) and that construing “sex” to include “certificated sex” would render aspects of the Act incoherent or impracticable to apply.
Importantly, this does not remove discrimination protections for transgender people. Trans individuals remain protected under the separate protected characteristic of gender reassignment in the Act, meaning discrimination on that basis remains unlawful.
Practical Impact on Small Business Operations
For many small businesses the implications of this judgment will be felt in three core areas.
- Workplace Facilities
One of the most immediate operational questions for employers concerns single-sex facilities such as toilets, changing rooms or showers. The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide suitable and sufficient sanitary convenience and specify that separate facilities must be provided for “men and women” unless each facility is in a separate, lockable room.
In light of the Supreme Court’s clarification, references to “men and women” in employment contexts are likely to be interpreted consistently with the definition of “sex” under the Equality Act. Small businesses therefore need to ensure that:
- Where communal facilities are provided, they are separated by biological sex unless fully enclosed, self-contained units are installed.
- Any policies governing facility use are clear, consistent, and capable of objective justification.
For a small business with limited space, this may mean conducting a review of existing facilities to identify whether they are single-sex, gender-neutral, or mixed. Gender-neutral options can help avoid discriminatory outcomes while single-sex arrangements may still be lawful where needed. Employers should also ensure that any policies on facility use are clear, consistently applied and justified as a proportionate means of achieving a legitimate aim.
Importantly, employers must still avoid discriminatory treatment of employees with the protected characteristic of gender reassignment. The existence of single-sex facilities does not justify harassment, victimisation, or less favourable treatment.
- Services Offered to Customers or Clients
Small businesses that offer services to the public (for example leisure activities, health or counselling services, or group workshops), need to consider whether they are, or should be, offering single-sex services. The Supreme Court ruling allows providers to organise single-sex services based on biological sex when proportionate and necessary, subject to the Equality Act’s broader rules on discrimination and harassment.
Businesses should carefully document the legitimate operational reasons for any sex-based exclusions or offerings, such as privacy or safety considerations. Blanket exclusions without proper justification may still risk indirect discrimination or claims under other protected characteristics.
- Recruitment Practices
In recruitment, the definition of sex affects how small businesses engage with positive action measures, occupational requirements and record-keeping. Employers sometimes use positive action to encourage under-represented groups to apply. The Supreme Court’s clarified meaning of sex emphasises that any sex-specific recruitment policies or advertised roles must be carefully justified and consistent with the Act’s protections.
For example, if a role is genuinely suitable only for one sex i.e. roles involving intimate care, privacy-sensitive services, or participation in single-sex activities, this must be defensible as a proportionate means of achieving a legitimate aim. Similarly, workforce monitoring by sex should align with the biological sex categories as defined by the ruling, even where individuals have a GRC. Recruitment adverts and job descriptions should avoid ambiguous wording that could be misinterpreted in light of the ruling.
Key Takeaways for Small Businesses
The Supreme Court’s judgment brings legal clarity but also practical complexity. Small businesses should:
- Review workplace facilities to ensure compliance with both health and safety legislation and Equality Act 2010.
- Consider whether and how single-sex services are offered to clients, ensuring any decisions are justified and proportionate.
- Ensure recruitment practices and positive action measures comply with the clarified definition of sex while respecting all protected characteristics.
- Update policies and provide management training to reflect the clarified legal position.
Ultimately, legal advice and clarity should help businesses navigate this sensitive area more confidently. That said, good practice remains grounded in respect, consistency and robust justification when biological sex is relied upon in operational decisions.
If you need assistance with this employment matter, please do not hesitate to get in touch with our friendly team on 01256 844888 or enquiries@lambbrooks.com
