The judgment in For Women Scotland (FWS) Ltd v The Scottish Ministers [2025] UKSC 16 (‘FWS’) has sent a great many sectors across the UK scrambling to find out what, exactly, they are supposed to do in its aftermath. The UK Supreme Court, issuing a decision in the immediate context of specific guidance around legislation on the make-up of boards in Scotland under the Gender Representation on Public Boards (Scotland) Act 2018, rejected the approach to the case adopted by the Inner House of the Court of Session and used its decision to adopt a determination of the general application of sex under the Equality Act 2010. As such, the case illustrates the challenges facing common law courts when they seek to make broad determinations on major pieces of legislation in the context of a specific set of arguments on the facts of one narrow case.
The UKSC found that, for the purposes of the Equality Act 2010, ‘sex’ refers to ‘biological sex’. Reasonably interpreted, this effectively describes sex assigned at birth, meaning that ‘woman’ means assigned the female sex at birth, and ‘man’ means assigned the male sex at birth. The ruling appears to produce an incontrovertible clash with the Gender Recognition Act 2004, which was broadly understood prior to the FWS judgment as meaning that once someone transitioned, their ‘acquired’ gender would correspond to their sex for all legal purposes. The consequence of the judgment, then, is to override previous understandings that ‘trans women are women’ and ‘trans men are men’ for the specific purposes of the Equality Act 2010: a trans woman holding a gender recognition certificate (GRC) will still be treated as ‘male’ for the purposes of the Equality Act 2010, and a trans man holding one will be treated as ‘female’ for the purposes of the Equality Act 2010.
We are not intending, in this post, to relitigate the case. Indeed, many others have already engaged with the substance of the ruling and the approach to the interpretation of the Equality Act adopted therein (see here, here and here). In this post we instead seek to address the extent to which much of the discourse around the judgment has not given appropriate weight to certain aspects of the decision, and that many prominent commentators have chosen to present its terms in highly expansive ways. These shortcomings in discussions of the judgment have serious societal repercussions, which are immediately being experienced by trans people.
We aim, also, to offer clarity on one particular area of confusion arising from the fact that the UK Supreme Court is the apex court across the UK: namely, that this ruling does not have the same effects in Northern Ireland as it does in England, Scotland and Wales. This is because of two separate but related factors: the first is simply that the relevant parts of the Equality Act 2010 do not apply in Northern Ireland, and the second is that even if the outcome of FWS was read across to Northern Ireland’s discrimination legislation, EU law made applicable to Northern Ireland on account of the Windsor Framework precludes a reading of ‘sex’ as meaning ‘biological sex’ in the context of gender reassignment, in areas which fall within the scope of the Windsor Framework.
1. A tale growing in the telling
Many bodies find themselves under pressure to articulate a public position following the UKSC decision in FWS on a wide range of issues affecting trans people – whether or not these were the subject of the decision. On 28 April 2025, for example, The Telegraphpublished a story that the BBC ‘could change its style guide’ in light of the judgment. At present, the BBC style guide refers to all persons by their preferred pronouns in reporting; the Telegraph implies that this may no longer be necessary (or even permitted) in light of FWS. Not only is this reporting based merely on the BBC confirming that it would consider the judgment and its implications, but the suggestion made that the BBC might have to stop using preferred pronouns when reporting fundamentally misunderstands what actually happened in FWS. The UKSC was at pains to stress that trans people continue to enjoy protection against discrimination across the Equality Act 2010 in light of their gender reassignment. In this context, a blanket policy of refusing to use preferred pronouns may amount to harassment (see e.g. Forstater v CGD Europe, [99]). The UKSC simply did not rule on what pronouns the BBC should use when reporting.
Moreover, the case brought before UKSC was about a piece of Scottish guidance about its Gender Representation on Public Boards Act 2018 – and what the term ‘women’ meant in the context of requiring 50% of non-executive members of Scottish public boards to be ‘women’. The UKSC, in its judgment, concludes that the words ‘sex’ and ‘woman’ and ‘man’ should have a single meaning throughout the Equality Act and therefore swathes of the judgment range across the impacts of that understanding in areas far beyond gender representation on public boards.
If the common law method usually sees general principles emerge as a result of a proposition being tested in multiple factual scenarios across a range of cases, in FWSthe UKSC was testing a proposition about the single meaning of sex under the Equality Act based on a range of scenarios which stretched far beyond the facts of the case at hand. As such, the court was acting without the benefit of these issues being argued on specific facts in making a choice to determine whether a person with a gender recognition certificate which recognises that their gender is female is a ‘woman’ for the general purposes of the Equality Act 2010. The UKSC was thus drawn into making general assertions which might be best regarded as obiter observations – but which have been picked up by large sections of the media, and also appears to have been picked up by the Equality and Human Rights Commission, the statutory body that offers guidance on the Equality Act 2010, as being determinative of the law. Clarity on what the ruling does and does not determine as a matter of law is thus going to be essential for many employers and service providers.
2. Equality Act 2010 in Northern Ireland
In FWS, the UKSC ruled on the meaning of the words ‘sex’, ‘woman’ and ‘man’ in the specific context of the Equality Act 2010. As the UKSC was at pains to stress:
‘It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010’. (FWS, [2])
The Equality Act 2010 does not apply to Northern Ireland, other than four provisions, none of which were at issue in FWS. Equality issues are a devolved matter in the Northern Ireland context, in marked contrast to the limits on devolved competence in this area for the Scottish Parliament, and some protections differ significantly from those in place in other parts of the UK (in particular the specific protections against discrimination on the basis of political opinion). In Northern Ireland a collection of different measures make up anti-discrimination law, developing a distinct complexion from the law operative in Great Britain from the very beginnings of the polity in the 1920s. In light of opposition, particularly from the Democratic Unionist Party from 2007 onwards, these different measures have not been drawn into a unified piece of equality legislation comparable to the 2010 Act. But in constitutional terms, equality law does not operate in Northern Ireland in the same way that it does in other parts of the UK (and has not operated in the same way for a long time).
As a result of this distinction there was no effort to draw Northern Ireland into the ambit of the 2010 Act. As a matter of simple statutory construction, the fact that the UKSC made clear that it is not making general claims as to the meaning of ‘gender’ or ‘sex’, nor is it defining what a ‘woman’ is outside of the EA 2010, means that (for example) none of the Northern Ireland disability legislation is affected by the outcome of FWS. The practical consequence of that should be that ‘woman’, ‘sex’ and ‘gender’ continue to be read as they have been in Northern Ireland.
3. Trying to force the FWS Judgment to fit Northern Ireland
In spite of these complexities, there have been prominent efforts to present the UKSC judgment as forming the basis for a more general reinterpretation of what ‘woman’, ‘sex’ and ‘gender’ mean across the UK for all legal purposes. The Equality and Human Rights Commission itself appears to be leading in this effort, with a rush following the judgment to publish interim guidance which treats the UKSC as having definitively settled these definitions. Moreover, within Northern Ireland, some public officials have already made comments that suggest that they believe that the FWS judgment applies directly to the public bodies to which they belong. Even the Equality Commission for Northern Ireland (ECNI) has committed to reviewing its guidance and suggested that employers and service providers and public bodies ‘review any policies the judgment may impact on’, which is particularly concerning given that a judgment about the Equality Act 2010 does not apply to any employers, service providers or public bodies in Northern Ireland.
It is not for us to consider if this is being done out of ignorance of the limits of the FWS judgment or a concrete desire to redefine what ‘woman’, ‘sex’ and ‘gender’ mean; what we are concerned with is that these efforts to generally redefine these terms are not legally required, and in the specific context of Northern Ireland, are actually happening without due regard to Northern Ireland’s enduring obligations under EU law. To understand this, we have to consider what EU law has said on the subject of ‘sex’ and ‘gender’ first, and then, how this EU law continues to apply under the Windsor Framework.
4. EU Law on ‘Sex’ and ‘Gender’
The area of EU law that is particularly relevant for FWS is that of equal treatment, and specifically, the EU’s Recast Equal Treatment Directive. Despite the general terms of its title, the Directive is limited in scope to areas where the EU is competent to legislate and does not cover all protected characteristics to the same degree. Nonetheless, beginning with the employment context, EU sex discrimination protections have expanded, and now apply to vocational training, goods and services provision and social security protection. The Equal Treatment Directive is one of the major pieces of legislation that has achieved this, and crucially, for the purposes of our current analysis, has been interpreted as extending non-discrimination obligations for employers, on the basis of sex, to include trans persons.
The key case where this was set out by the EU’s Court of Justice (CJEU) is 1996’s P v S and Cornwall County Council(P v S). In the case, a trans woman was dismissed from her job after she informed her employers that she was undergoing gender reassignment. She challenged this dismissal, but the English tribunal hearing her case considered that the Sex Discrimination Act 1975 did not offer protection to trans people, because a trans man in her position would have been treated the same way, and this was therefore not seen as a matter of ‘discrimination’. However, the tribunal was obliged to consider whether EU law might have a different interpretation of how sex discrimination applied to P’s situation and referred the matter to the CJEU.
The resultant preliminary ruling from the CJEU was instrumental in precluding discrimination against trans people in employment situations in several ways. First, it stressed that the principle of equality (between sexes) was a fundamental principle of EU law, and that non-discrimination on the basis of sex is a fundamental human right that the CJEU has the obligation to ensure (P v S, [17]-[19]). This finding was used to dismiss the UK’s contention that this was not ‘sex discrimination’ because it would have happened to any person undergoing gender reassignment:
Accordingly, the scope of [the Equal Treatment Directive] cannot be confined simply to discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is also such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned. (P v S, [20])
The CJEU’s next observation is the one that makes the FWS ruling all-but impossible to accommodate within EU law:
Such discrimination is based, essentially if not exclusively, on the sex of the person concerned. (P v S, [21], emphasis added)
The CJEU does not make ‘obiter’ observations – they do not exist as a matter of EU law – and as such, they find in this case that gender reassignment discrimination is essentially, if not exclusively, a form of sex discrimination. This precludes the separation between ‘gender reassignment’ and ‘sex’ that the UKSC read into the Equality Act 2010, where they are treated two wholly distinct protected characteristics.
The CJEU made one more particularly significant acknowledgement, in that it stated that ‘gender reassignment’ discrimination, as an element of sex discrimination, took place regardless of where someone was on the journey to transitioning:
Where a person is dismissed on the ground that he or she intends to undergo, or has undergone gender reassignment… (P v S, [21], (emphasis added)
In other words, for the purposes of EU sex discrimination law, it does not matter if someone holds a GRC or not. Expansive readings of what FWS determined limit some of the Equality Act’s protections to trans people who hold a GRC (notwithstanding how difficult these remain to obtain across the UK, ever under the Gender Recognition Act 2004). Under EU sex discrimination law, as such, trans people are protected against discrimination whether or not they hold a GRC.
This position adopted by the CJEU in P v S connected the protection of trans rights to EU law against sex discrimination. This is particularly significant when the range of protections under EU law varies dependent on which protected characteristic is at issue. When some Member States continued to attempt to treat issues concerning trans people as being related to sexual orientation and thus covered by a more limited range of EU law protections, this ruling provided a basis to resist those attempts.
P v S is not a one-off decision in terms of EU law treating discrimination against trans people in their acquired gender as a form of sex discrimination. In Richards, in 2006, the CJEU forcefully reiterated this point, informing the UK Secretary of State for Works and Pensions that they were fundamentally wrong in using ‘men who have not undergone gender reassignment surgery’ as the correct comparator to a trans woman (Richards, [27]-[31]). A noteworthy factor in Richards is that Ms. Richards transitioned and applied for a pension at what was then the women’s pension age (60), prior to the introduction of the Gender Recognition Act 2004, and the CJEU concluded that the introduction of this Act should ‘lead to the disappearance of disputes such as that which gave rise to the case in main proceedings’ (Richards, [43]).
The Equal Treatment Directive is EU secondary law and is thus a specific manifestation of primary EU law (the EU Treaties). The relevant part of primary EU law for present purposes is the principle of equality – from which the CJEU took its lead in P v S – and which now appears in multiple parts of EU primary law: Articles 2, 3(3), 9 and 21 TEU, Articles 8, 153(1) and 157(4) TFEU and Articles 20, 21(1) and 23 of the Charter of Fundamental Rights. Of note, gender reassignment does not appear as a separate protected characteristic from sex in any of these provisions – not even the Charter.
As the CJEU has held in relation to the similar Equality Framework Directive, the scope of protection afforded by EU secondary law does not go beyond that afforded by EU primary law (see e.g. Dansk Industri v Rasmussen, [23]). Consequently, a disaggregation of gender reassignment and sex, as happened in FWS (see e.g. [265](xii)) is highly unlikely to be accepted as a matter of EU law. It is also telling that in FWS, the Supreme Court interpreted the Sex Discrimination (Gender Reassignment) Regulations 1999 as having been adopted in response to P v S, without necessarily determining whether these Regulations gave effect to the way in which the CJEU had determined gender reassignment (as a part of sex) in P v S (FWS, [54]-[62]). Put simply, FWS said nothing about how gender reassignment and sex ought to be construed as a matter of EU law.
5. But … Brexit!
When it was a Member State, the UK seems to have (albeit somewhat begrudgingly, given the volume of CJEU case law involving UK breaches of the non-discrimination on the grounds of sex obligation with respect to trans people) adopted this EU understanding of ‘gender reassignment’ discrimination as being a form of ‘sex discrimination’. In 2004’s A v Chief Constable of West Yorkshire, the House of Lords found that under the Sex Discrimination Act 1975, Ms. A – a trans woman who wished to become a police constable – would be unable to conduct constable search duties on women (as being illegal for a ‘biological man’) and on men (as a matter of practice, given that she appeared a woman), and that excusing her from search duties would in effect ‘out’ her against her wishes (A, [3]). However:
To outflank [domestic law], Ms A relied on the law of the [EU].’ (A, [9])
Here, Lord Bingham concludes:
In my opinion, effect can be given to the clear thrust of [EU] law only be reading “the same sex” … and “woman”, “man” and “men” [in the relevant pieces of domestic legislation] as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search. (A, [11])
However, since A v Chief Constable, the UK has left the EU – and the courts are generally not bound to interpret domestic legislation in light of EU law anymore. They could do this, for reasons of consistency over time, but they are not obliged to do so, and there is very limited engagement with EU law in the FWS judgment.
That general rule, however, has a jurisdiction-sized exception in the form of Northern Ireland. Under the Windsor Framework’s Article 2, the UK government has committed to ensuring that there is no diminution to ‘rights, safeguards and equality of opportunity’ as set out in the 1998 Belfast/Good Friday Agreement, and as articulated specifically in six EU equality directives listed in Annex 1 of the Framework. One of those directives is the current Equal Treatment Directive (an earlier iteration of which resulted in P v S). But other Annex 1 directives apply with respect to sex discrimination beyond employment contexts, protecting ‘equal treatment between men and women in the access to and supply of goods and services’, ‘equal treatment between men and women engaged in an activity in a self-employed capacity’, and ‘equal treatment for men and women in matters of social security’.
Under Article 13(3) of the Framework the law in place in Northern Ireland law needs to track developments in EU law which apply to the specified Annex 1 directives. These EU measures must, moreover, be interpreted ‘in conformity with the relevant case law of the [CJEU]’ under Article 13(2) of the Framework. This means P v S and judgments which followed in this regard continue to bind the interpretation of equality and non-discrimination law as it falls within the scope of the Windsor Framework. Of course, this binding nature is not only mandated in the Windsor Framework, because in 2020, the Westminster Parliament enacted the European Union (Withdrawal Agreement) Act 2020, section 5 of which inserted a new provision in the statute book. By section 7A of the European Union (Withdrawal) Act 2018, the Windsor Framework, as part of the UK-EU Withdrawal Agreement, must be given effect in preference to all domestic laws which fall within its scope.
Therefore, insofar as the FWS interpretation of the Equality Act 2010 conflicts with EU law, Northern Ireland is obligated by the UK Parliament to ignore the judgment. Consequently, assertions that courts and tribunals in the jurisdiction might find FWS‘persuasive’ are puzzling. When such a significant part of the anti-discrimination law framework which is operative in Northern Ireland derives from EU law and remains tied to EU law, and this law covers discrimination against trans people on the basis of their acquired sex, it would risk considerable confusion to not rely on this approach across relevant elements of Northern Ireland’s anti-discrimination law.
There is thus no reason to believe that FWS should have any impact in Northern Ireland at all, and pressure to give effect to the UKSC position should be resisted, on the straightforward basis that giving effect to it would be unlawful. Trans people are as a matter of EU law considered to hold the sex that they acquired, rather than the sex they were assigned to birth – and that a failure to consider trans individuals as holding their acquired sex is a breach of EU law – both primary and secondary – which falls within the scope of the Windsor Framework.
There is, even after FWS, no reason to believe that the concepts of ‘sex’ or ‘gender’ or ‘woman’ under the measures which constitute EU equality law would be constructed differently as a matter of EU law to the position adopted in P v S. As such, in all areas of employment, service provision and social security, for the purposes of the Windsor Framework, trans people in Northern Ireland face discrimination when they are treated differently than others who hold their acquired sex.
Conclusion
The effects of FWS should not be misrepresented or overstated – and it should not have any effect in Northern Ireland at all. The Equality Act 2010, which is the only piece of legislation reinterpreted in FWS, does not generally apply to Northern Ireland – but even if the FWS interpretation of ‘sex’, ‘woman’ and ‘man’ was viewed as some sort of ‘clarification’ that anyone in Northern Ireland wished to act on, they should not do so, because this would involve a breach of the EU law obligations set out in Article 2 of the Windsor Framework. In situations involving employment, service provision or receipt and social security, which cover all the areas on which FWS could be seen to have a potential effect, trans women in Northern Ireland continue to be women; and trans men in Northern Ireland continue to be men.
Reposted from the Administrative Court Blog
Anurag Deb
Sylvia de Mars
Colin Murray
Aoife O’Donoghue
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