Beyond Compliance: Navigating Sex, Gender, and Equality in the Workplace Post-Recent UK Rulings

By Zak Ali, Senior Associate at rradar

On 16 April 2025, the Supreme Court delivered a significant judgment in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16. While the case addressed public sector board appointments, the Court’s reasoning has broader implications for employers grappling with sex, gender identity, and discrimination in the workplace.

The Case Explained

The dispute originated from the Gender Representation on Public Boards (Scotland) Act 2018, which aimed to increase women on Scottish public boards. Scottish Ministers’ guidance extended the term “woman” to include trans women, with or without a Gender Recognition Certificate (GRC). Women Scotland Ltd challenged this, arguing the Scottish Government lacked authority to redefine “woman” in a way that conflicted with the UK-wide Equality Act 2010, which reserves such definitions to the Westminster Parliament. The case eventually reached the UK Supreme Court.

The Supreme Court decisively ruled in favour of For Women Scotland Ltd, holding that the Scottish Government acted unlawfully. Only the UK Parliament has the competence to define protected characteristics for UK-wide equality legislation.

Why This Matters in Employment Law

Although focused on public appointments, the principles clarified by the Supreme Court directly impact UK employment law. The Equality Act 2010 underpins workplace anti-discrimination protections, including the protected characteristics of “sex” and “gender reassignment.” The ruling reinforces that these characteristics must remain legally distinct.

Employers cannot, through internal policies, redefine “woman” or “man” to include gender identity in a manner that contradicts the statutory framework. Doing so creates legal uncertainty and could expose employers to claims of indirect discrimination if policies fail to protect individuals based on sex or gender reassignment appropriately.

Practical Steps for Employers

Employers must walk a careful line between complying with the law and embracing an inclusive workplace. Based on the Supreme Court’s decision, here are key actions employers should consider:

1. Audit Equality and Diversity Policies

Review current workplace policies, handbooks and training materials to ensure they:

• Accurately reflect the legal definitions of “sex” and “gender reassignment” under the Equality Act 2010.
• Avoid conflating these terms with broader or alternative definitions of gender or identity not recognised in statute.

2. Provide Inclusive Protections Without Redefining Law

You can (and should) support transgender and non-binary employees by:

• Including clear anti-discrimination clauses that protect against harassment or victimisation based on gender identity.
• Creating respectful workplace practices, such as the use of chosen names and pronouns, without asserting that this changes an individual’s legal sex.

3. Update Equal Opportunities Monitoring

Ensure data collection around sex and gender is legally compliant. Where optional self-identification is allowed, make clear distinctions between legal sex (for regulatory or reporting purposes) and gender identity (for inclusivity purposes).

4. Deliver Legally Accurate Training

Instruct HR teams, diversity officers and managers on the legal distinctions affirmed by this case to prevent misunderstandings that may lead to complaints or claims.

5. Prepare for Policy Challenges

Be aware that clarity in policy wording is critical. Overly broad definitions, however well-intentioned, may attract legal scrutiny if they inadvertently diminish statutory protections for any group.

To Conclude

The Supreme Court’s ruling in For Women Scotland Ltd is a crucial reminder: inclusivity, while vital in the workplace, must be pursued within legal limits. By proactively addressing these areas, employers can foster an inclusive environment that respects all employees’ diverse identities.

It’s essential for businesses to remain vigilant and adaptable, ensuring policies not only comply with legal standards but also reflect a commitment to equality and respect. This approach mitigates legal risks and promotes a culture of acceptance and understanding. For employers, this is a prompt to re-evaluate internal policies, update training programmes, and ensure equality initiatives are both inclusive and legally robust. Balancing the rights of all employees, regardless of sex, gender identity, or sexual orientation, requires a precise understanding of the law as it stands.