What was the Supreme Court Judgment?
On 16 April 2025, the UK Supreme Court delivered its long-awaited judgment in For Women Scotland Ltd v The Scottish Ministers (the “Judgment”). The Court confirmed that, for the purposes of the Equality Act 2010 (the “Act”), the terms “woman,” “man,” and “sex” refer exclusively to biological sex. This means that a Gender Recognition Certificate (“GRC”) does not change a person’s sex under the Act. You can read our initial analysis of the Judgment, here.
The ruling, which has been met with widespread media attention, has resulted in the Equality and Human Rights Commission (“EHRC”), the statutory body responsible for enforcing the Act, publishing interim guidance on single-sex spaces.
This interim guidance, amendments to the ECHR code of conduct, and the Judgment, may have significant implications for schools and education providers. While GRCs are not available to individuals under the age of 18, and therefore do not directly affect pupils in secondary education and below, the judgment brings into sharp focus the legal responsibilities of schools in areas such as the provision of suitable facilities and the balancing of rights for all pupils.
The EHRC have been consulting on wider changes they have made to their code of practice, in light of the Judgment, which closed on 30 June. The amendments consulted on include updates to sections on competitive sport, separate and single-sex services in relation to gender reassignment, the justification for separate and single-sex services, and communal accommodation.
What are the immediate impacts on education providers?
Education providers must respond to the Judgment with care, ensuring that any changes to policies or practices are legally justified and well measured.
At present, no comprehensive government guidance has been issued on how schools should interpret the ruling. However, the EHRC interim guidance has outlined the following requirements for schools in England and Wales:
- single-sex toilets must be provided for boys and girls aged 8 or above;
- single-sex changing facilities must be provided for boys and girls aged 11 and above;
- Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities;
- Pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities; and
- Schools should consider providing suitable alternative arrangements for transgender pupils.
The amended EHRC code of conduct also indicates the following, in relation to competitive sport:
- organisers of gender-affected competitive sports can exclude or treat trans people differently, if it is necessary for reasons of fair competition or safety;
- a blanket exclusion on trans participation would likely be unlawful, unless organisers can show such an exclusion is necessary for reasons of fairness or safety; and,
- policies should be supported by a clear rationale and evidence base, and will often wish to draw upon guidance from sporting authorities.
How should schools move forward?
Education providers should ensure to take a measured and thoughtful approach in response to the Judgment and resulting guidance. Whilst education providers await government guidance on their responsibilities, assessment of internal policies and procedures should be carried out to ensure alignment with current guidance.
Key areas that are likely to be impacted include:
- Access to single-sex facilities;
- Participation in single-sex sports;
- Positive action programmes;
- Data collection on sex and gender; and,
- Staff training and safeguarding.
In reviewing these policies, education providers must continue to uphold their duties under the Act to ensure that all pupils are treated with dignity and respect and are safeguarded from harm, discrimination, or harassment. Training staff about the implications of the Judgment, the impact on relevant policies, and how best to go about answering queries from pupils and third parties, will be important. It will assist in carrying out these duties, and in reducing any risk of legal challenge for incompatibility with the developing law.
How can we help?
The guidance issued by the EHRC is not final, and the amendments to its code are still subject to consultation. Education providers should stay alert to legal developments, as the space is fast moving; a challenge has recently been brought against the EHRC and the Minister for Women and Equalities on the basis that they consider the interim guidance to be ‘wrong in law’. It is hoped that further statutory guidance will provide schools with a comprehensive picture of the changes they may need to implement following the judgment.
This area of law is evolving rapidly and remains highly complex. For more information or advice, please contact our Public Law and Regulatory team who can support you.