Following the Supreme Court Judgement
Key information
- The FWS judgment only applies to the application of the EA 2010.
- Trans people are still protected from discrimination under the EA 2010.
- GRCs are still valid, but are now understood to not change your legal “sex” for the purposes of the EA 2010.
- A service provider is not obliged to exclude trans people from its services and can continue to include them without breaking the law. Service providers should seek legal advice around this, as navigating this area of law has become trickier following the judgment.
- Single-sex spaces can exclude trans people if they can make the case that it is proportionate and the least restrictive measure to achieve a justifiable aim.
- Your safety, dignity and privacy are important.
- You are not obliged to disclose you are trans to anyone and your GRC, if you have one, is confidential.
- The EA 2010 still protects trans people from harassment and discrimination in the workplace.
This page summarises general legal information relating to the rights of transgender and/or non-binary individuals under the law in England, Scotland and Wales. This information represents our understanding of these rights at the time of publication of this information. It is not intended to give specific legal advice on which you should rely. If you require legal advice, or further details on any matter referred to, please consult an independent legal professional.
Introduction
Following the Supreme Court’s judgment in For Women Scotland v Scottish Ministers [2025] UKSC 16 (“FWS judgment”), we at TransActual understand there is considerable uncertainty as to how we as trans people (those with and without a Gender Recognition Certificate (GRC)) can exercise their continued rights under the Equality Act 2010 (“EA 2010”).
We are also aware that many service providers want to continue to be trans-inclusive and want to know how they can be so, in a lawful way.
This resource aims to offer some insight in to both areas of enquiry. Please note that we are unable to be exhaustive given the broad application of the EA 2010.
We would also emphasise that some things remain unclear and our overarching message is that if you are subject to discrimination, harassment or victimisation as a result of being trans, you are protected under the EA 2010 and you should seek support and assistance.
You can also let us know you’ve been questioned, stopped or challenged using a single-sex space by filling in TransActual’s single-sex space refusals tracker form.
As this state of affairs continues to evolve, we will make every effort to update this resource in response. You can see how recently this resource was updated at the bottom of this page.
Notes on this resource
Some of the terms used in the FWS judgment and referenced in legislation are terms we would not use at TransActual, (such as ‘biological sex’). We have still used these terms in places within this resource to help communicate exactly what the court has said, when necessary. Such words/phrases are indicated by the use of inverted commas (‘ ‘). Use should not be taken as endorsement.
Sections in quotation marks (“ “) are direct quotes from the ruling and legislation.
The FWS judgment states: “The definition of sex in the EA 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.” [171] The judgment does not grapple with what this might mean for intersex people and it is not clear what the implications may be.
We encourage intersex people to reach out to Intersex UK, Intersex Equality Rights or Interconnected UK for support in understanding how this ruling applies to you. However, if you’re treated unfavourably because you’re trans or perceived to be trans, you may also be unlawfully discriminated against on the basis of perception and much of this resource could be relevant to you.
We send our love and solidarity to intersex people in light of the intersex-erasure within the judgement and the law, as well as the erasure that is endemic in our society.
The Supreme Court refers to non-binary identities in relation to the case of Castellucci [2024] EWHC 54 (Admin) in reference to the fact that currently a Gender Recognition Panel has no power to issue a non-binary GRC. This reflects that, under the Gender Recognition Act (“GRA”) an eligible trans person is only able to acquire a binary GRC i.e. ‘male’ or ‘female’.
Following the judgment, as is the case with trans men and trans women, for the purposes of the EA 2010, a non-binary person’s “sex” will be that which was assigned to them at birth (subject to them claiming discrimination by perception).
For the purposes of this judgment, it is important to note that the Supreme Court has confirmed that someone does not need a GRC in order to be protected on the ground of ‘gender reassignment’. We also know through past case law that non-binary people may be found to be protected by the protected characteristic of ‘gender reassignment’, depending on individual circumstance; (see for instance the employment tribunal case of Taylor v Jaguar Land Rover 1304471/2018).
The Supreme Court ruling
The issue the Court was asked to determine was the meaning of “man”, “woman” and “sex” in the EA 2010.
This is important because the EA 2010 legally protects people from discrimination, including harassment, in the workplace and in wider society relating to:
- age
- disability
- gender reassignment (our emphasis)
- marriage and civil partnership
- pregnancy and maternity
- race
- religion or belief
- sex (our emphasis)
- sexual orientation
These are called ‘protected characteristics’.
The Supreme Court was looking in particular at the two specific characteristics of “sex” and “gender reassignment”; specifically, what “sex” means for a trans person with a GRC, under the EA 2010 and how that works with the provisions that protect people from discrimination on the basis of “sex” and/or “gender reassignment”.
Broadly, discrimination can occur in one of the following forms:
- Direct discrimination – treating someone less favourably than others because of a protected characteristic
- Indirect discrimination – putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at a particular disadvantage
- Harassment – unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates a hostile, degrading, humiliating or offensive environment for them
- Victimisation – treating someone unfairly because they’ve complained about discrimination or harassment
The Supreme Court held that the term “sex” (and associated meaning of “man” and “woman”) in the Equality Act refer to ‘biological sex’, stating:
“The meaning of the terms ‘sex’, ‘man’ and “woman” in the EA 2010 is biological and not certificated sex” [265(xviii)].
By ‘certified sex’ they mean the sex stated on a GRC. This means that when applying the EA 2010, trans people with a GRC are not deemed to be the “sex” stated on their GRC and instead, it means the “sex” indicated on their original birth certificate (even though this has technically been updated via a GRC).
Yes.
It was made clear by the Supreme Court that its interpretation of the EA 2010 does not remove the “important protections available under the EA 2010” [264] for trans peoplewith (or without) a GRC.
As a starting point, trans people are generally protected from discrimination on the ground of ‘gender reassignment’, regardless of whether you have a GRC or not.
If you are treated less favourably by an employer or service provider because you are trans, this is discrimination. Whether this discrimination is “unlawful”, will depend on a variety of factors.
The FWS judgment has not changed trans adults’ ability to apply to the Gender Recognition Panel for a GRC.
You can apply for a GRC if you want your affirmed gender (“acquired gender”) of male or female to be recognised on your birth certificate. There is no option of a different gender marker for non-binary people.
A GRC can be used to change HMRC records and marriage certificates, for instance. This judgment has however decided that a trans’ persons legal “sex” stated on their GRC is not the “sex” they will be considered to possess under the EA 2010.
Public authorities for the purpose of the Public Sector Equality Duty (PSED) are listed in “Schedule 19” of the EA 2010. It also applies to anyone performing a function of a public nature for the purposes of the Human Rights Act 1998; for example, the Equality and Human Rights Commission, health providers, police, local councils, schools and various government departments/Ministers.
The PSED (imposed by s.149 EA 2010) remains following the judgment and means those caught by the provision must in the exercise of their functions have due regard to the need to:
- eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
- advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
- foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
This continues to be a basis of challenge that trans people can point to if they consider a public authority is not complying with the PSED.
Your rights in single-sex spaces
The FWS judgement impacts the “single-sex service” and “separate sex service” provisions under the EA 2010, which can include for instance, homeless shelters, rape or domestic violence services, hospital wards and changing rooms (non-exhaustive).
Under the EA 2010, services have always been able to be limited to one “sex” or provided separately/ differently for each “sex” where specific conditions are met, for example:
- the service would be insufficiently effective were it only to be provided jointly;
- the service is provided for, or is likely to be used by, two or more persons at the same time, and the circumstances are such that that persons of one “sex” might reasonably object to the presence of a person of the opposite sex
- there is likely to be physical contact between a person (A) to whom the service is provided and another person (B), and (B) might reasonably object if (A) were not of the same “sex” as (B).
Providing single sex/separate sex services continues to have to be a “proportionate means of achieving a legitimate aim”. This means services can only have a single-sex space that excludes trans people if it is the least restrictive measure to achieve a justifiable aim e.g., privacy or safety.
Provided these conditions are met (which a service provider would have to illustrate), single sex services can lawfully be provided. However, services will still have to be sure not to put trans people (whether they have a GRC or not) at an unjustifiable disadvantage as a result of the segregation.
If they do, a trans person (with the ‘gender reassignment’ protected characteristic) may be able to claim unlawful discrimination, especially if someone is left without access to any service because none are available or because the trans person feels uncomfortable using their “biological sex” service. Again, the service provider would need to defend their exclusionary approach as proportionate.
Case study
Z, a trans person, tries to use a single sex facility that is aligned with their gender identity, but is refused access on the basis that they are trans.
The service provider has no alternative facility which the trans person is comfortable in using.
The trans person could claim unlawful discrimination on the basis of gender reassignment.
Service providers continue to need to balance the needs and rights of everybody, including trans people.
If service providers want to continue delivering trans-inclusive policies, they in practice are likely to be able to do so.
Following the decision, a trans-inclusive service is unlikely to be a “single-sex service” for the purposes of the EA 2010 and therefore it is unable to rely on the particular defences available to a “single sex service”. However, if a service provider wishes to continue to exclude cisgender men only, there are other defences it could rely. It would only need to rely on these if a cisgender man were to challenge his exclusion from that space on the basis that other “biological men” are able to access it.
This is a technical area of the EA 2010 and service providers should seek legal advice wherever possible.
Your safety is important and should be taken into consideration when trying to access single-sex spaces. You could:
- Prepare in advance
You can research a service before trying to access it by searching for their trans inclusion and equality policies. You can also contact an organisation to ask about their stance on trans inclusion in their services.
There are a growing number of apps and lists you can use to research toilet facilities in advance:
The M Scale
Toilet Map UK
Refuge Restrooms - Buddy up
It can be helpful to have someone with you for support- for example, you may want to have a cis friend or ally accompany you. - Use gender-neutral services/spaces
You may feel safer using services that aren’t gendered. Some disabled people have suggested that non-disabled trans people could get a radar key in order to access disabled toilets where no other gender-neutral option is available. However, please be considerate of disabled people who need to use them and be aware that some disabled might need to use the toilet very urgently.
You can be prepared for potential situations by knowing your rights in advance.
If you are stopped from accessing a single-sex space or service on the basis of being trans (or being perceived to be trans), if you feel safe to you can:
- Ask for the person’s name and job title.
- Tell them that you are simply trying to [use the toilet/get changed for the gym/etc].
- Ask what the legitimate reason for your proposed exclusion is.
- Ask whether they have alternative facilities should you now prefer to use them (noting that you can refuse being forced to use the alternative, binary sex facilities).
- Remind the person that under the European Convention on Human Rights, Article 8 states that everyone has the right for their private and family life to be respected.
- Ask for a copy of the decision and reasons in writing, together with the organisation’s policy in relation to single-sex spaces and/or services.
After the incident:
- Write as much down as you can about what happened. Send it to yourself as an email so that you have a time stamped copy.
- Write a letter of complaint to the service provider.
- Contact a legal advice service, such as Trans Legal Clinic, or a solicitor to see whether you could take legal action.
- Complete the TransActual single-sex space refusal tracker form to help us to monitor the impact of the Supreme Court ruling on trans people’s lived experiences.
The Supreme Court emphasised the confidential status of a GRC. With this, trans people should feel bolstered in not having to produce a GRC as “evidence” if requested. A GRC is not required in order for you to seek protection under the EA 2010 on the basis that you are trans (i.e., on the basis of ‘gender reassignment’).
There is no clear way to determine whether someone trying to access a single-sex space (if they are so maintained) is trans, so exclusion is likely to be mostly based on perception. If you are a cisgender person who is perceived to be trans, you may also be unlawfully discriminated against on the basis of perception if you have no facility you can use comfortably.
Your rights at work
The EA 2010 still protects trans people from harassment and discrimination in the workplace under the protected characteristic of “gender reassignment” and, in certain circumstances, the protected characteristic of “sex” (e.g. claims based on association, perception or ‘same disadvantage’). Examples of discrimination at work could include:
- Not giving you hours, promotions, or equal pay
- Not giving you training
- Not giving you access to family leave, pensions, workplace benefits
- Not giving you a reference
- Not providing adequate toilet or changing room facilities
- Not letting you choose between gendered dress code rules – like asking you to wear a uniform based on gender assigned at birth
- Not being able to update your employee records
- Not hiring you – or dismissing you
- Not acting on reports of incidents of transphobic harassment
Examples of harassment could include:
- Unwanted jokes and physical behaviour
- Name calling and verbal abuse
- Spreading rumours
- Being ignored or excluded
These are all covered by the EA 2010 if they relate to a protected characteristic (e.g. “sex” or “gender reassignment”).
If any of these things happen to you or people connected to you at work, you can make a complaint with your employer.
In order to bring a harassment claim, you do not need to have the protected characteristic yourself. For example, a cis employee can bring a harassment claim relating to gender reassignment if they hear transphobic ‘jokes’ being told in the workplace. All that is required is for the conduct to have the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
If a colleague repeatedly deadnames or misgenders a trans colleague, for example, this could give rise to a claim for harassment under the EA 2010, particularly if the trans colleague has asked the person to stop and they keep doing it.
Victimisation is being treated unfavourably because:
- you’ve reported allegations of discrimination (such as experiences of harassment or bullying);
- you’ve brought a claim for discrimination under the EA 2010;
- you’ve given evidence or information in relation to proceedings.
Your employer isn’t allowed to retaliate against you in this way and neither is, for example, a new or prospective employer (e.g. if someone refuses to give you a job because you gave evidence against a previous employer in a discrimination case).
Employers can be seriously punished for allowing this kind of behaviour in the workplace – for example, Taylor v Jaguar Land Rover Ltd awarded a non-binary person £180,000 in damages after upholding claims for harassment, direct discrimination and victimisation relating to a lack of support they experienced in the workplace.
It’s important to act fast if you believe you might have a workplace discrimination claim as there are limits on how long you can leave it before legal action and the time in which you can make a complaint.
It’s important to act fast if you believe you might have a workplace discrimination claim as there are limits on how long you can leave it before legal action and the time in which you can make a complaint.
You can follow these steps to try and resolve the problem:
1. Document
Record as much evidence as you can about what has happened
2. Explain the problem
Talk to your employer informally and explain the problem. You could also signpost them to information about what they are meant to be doing. This might be enough to resolve the problem.
3. Get support
Contact organisations that can help you (in work, your trade union, or organisations like ACAS or the whistleblowing charity Protect).
4. Make a formal complaint
Follow your workplace’s procedure for formal complaints (sometimes involves filing a grievance).
5. Make a legal claim
If you’re still not happy, you can take legal action:
- In work, this is through an employment tribunal.
- For a complaint relating to personal data, this would be the ICO (the data protection regulator in the UK) and/or the civil courts.
- For discrimination outside of work or for a hate crime, this would be with the police or the courts.
1. Join a union
- Your union can give you support if you get called into a disciplinary meeting.
- Your union can give advice about whether something happening might be illegal.
- You can speak to colleagues to find out what union they are in, or read about different unions on the TUC website to see what might be a good fit.
- You can read more about your rights to join a union on the TUC website.
2. Join your employer’s LGBTQ+ network
- If you’re working at a larger employer, like an NHS trust, the civil service, HMRC, a council, or a big company, there’s probably an LGBTQ+ Network.
- They can let you know about what support is available at your workplace and what the workplace policies are.
3. Find the trans policy
- Lots of employers have a specific policy for trans people.
- It says what support you’re supposed to get from them as a trans person.
- Looking this up can help you know whether you’re being treated in line with organisational policy.
4. Talk to your manager
- It can help to talk to your manager in advance about problems or difficulties you might face or are worried about facing.
5. Make a safety plan
- If you’re at higher risk – for example, if you lone work – you might want to ask your manager about a safety plan being created for you.
- If you make site visits or travel around for work – you might want to check the policies of the places where you’d typically use the toilets or other facilities.
6. Set boundaries
- If you’re asked questions by your co-workers, manager, or members of the public – what do you want to answer?
- Do you want them to know whether or not you are trans?
- What do you feel comfortable with?
- The more you’ve thought about this in advance, the easier it is to keep to your boundaries.
Your rights with the police
You are under no obligation to tell the police that you are trans. If you are arrested, you do not have to answer police questions, and you can respond with “no comment” until you have spoken to a solicitor. It is generally recommended that you wait to speak to a solicitor before providing any personal information to the police.
It is still the case that the police cannot unlawfully discriminate against you for being trans under the EA 2010, and they are also caught by the PSED provisions under the EA 2010.
As it currently stands, once you are in custody the custody officer will ascertain what property you have with you and they are permitted to search you to the extent that they consider necessary. Sometimes, if you willingly empty your pockets, then further searching is not considered necessary.
However, if the custody officer does decide that a search is necessary, any strip or intimate search must be carried out by someone of the same ‘sex’ and not in the presence of police officers of a different ‘sex’. Such a search – whether a strip search or an intimate search – must normally be carried out with at least one other person present. A search conducted by a single individual is only permitted in exceptional cases involving urgent safety concerns, and such instances are extremely rare in practice.
We do not yet know if these policies will now be applied on the basis that ‘sex’ means ‘biological sex’. However, it is important to also acknowledge that the statutory basis for these requirements is the Police and Criminal Evidence Act 1984 (PACE), which does not directly apply because the FWS judgment was only concerned with the definitions in the EA 2010.
The policy differs slightly in Scotland.
More information on your rights as a trans or non-binary person if you are arrested can be found on the Liberty website.
The British Transport Police announced on April 17th that in response to the Supreme Court ruling they have made interim changes to their search policy. A spokesperson for BTP said:
“Under previous policy, we had advised that someone with a Gender Recognition Certificate (GRC) may be searched in accordance with their acquired sex, however, as an interim position while we digest yesterday’s judgment, we have advised our officers that any same-sex searches in custody are to be undertaken in accordance with the biological birth sex of the detainee…We are in the process of reviewing the implications of the ruling and will consider any necessary updates to our policies and practices in line with the law and national guidance.”
We are not currently aware of any other forces that have made similar changes. If a trans person is searched by an officer of the same assigned “sex”, this could be grounds for unlawful discrimination on the basis of gender reassignment and advice should be sought.
A hate crime is:
- Physical violence
- Threats of violence
- Sexual harassment
- Or any other crime against you
that is motivated by your gender reassignment (or any other relevant protected characteristic) or in relation to which the perpetrator demonstrated hostility based on your gender reassignment.
If any of these happen to you in the workplace – or anywhere else – it could be considered a crime. An important thing to know is that it’s up to you to decide whether you think that it was motivated by hate and prejudice on the basis of you being trans/perceived to be trans and if so, state that when you report the incident.
If you choose to make a report your rights include:
- to have the report recorded as a hate incident by the police
- to get information about and access victim support services
- to be kept up to date and informed about what is happening
- to make a statement about how the crime affected you
These four rights are consistent across The Code of Practice for Victims of Crime for England and Wales, the Victims’ Code for Scotland, and the Victim Charter in Northern Ireland – you get additional ones depending on which country you’re in. If you ask for something to be treated as a hate crime, this can mean harsher sentencing for the perpetrator.
After you’ve made a report, the Crown Prosecution Service may or may not prosecute – it depends on how much evidence there is. If they decide to take the case to court, you have additional rights in court to protect you. Your rights are enforceable – so you can complain if the police or CPS don’t treat you properly. You can also make an application to be kept anonymous during the court process.
Many people don’t report hate incidents and transphobia for lots of reasons – we understand it’s not what everyone wants to do. If you don’t want to make a report to the police, or you’re not sure if you want to make a report and want to talk it through with an expert, you can still get support:
- GALOP is a charity independent of the police and specialises support for victims of LGBT+ hate crime.
- You can also access GALOP support through the Zoteria app if you’d prefer to talk that way. Reporting through the Zoteria app also helps GALOP to track levels of hate crime.
- Victim Support is a charity independent of the police that supports victims of any crime.
A message to trans people in the UK
We want to encourage trans people not to panic, not all hope is lost – it’s bad, but we don’t know the full extent yet, it takes time to figure these things out.
Even though laws impact our lives, they cannot tell you who you are.
We will keep fighting until all trans people in the UK are able to live safely, in dignity and with access to appropriate healthcare.
You can find more information on the EA 2010 and Supreme Court ruling along with actions you can take to support the campaign to restore our rights on TransActual’s Equality Act Campaign hub.
LGBT+ Switchboard 0800 0119 100 (10am – 10pm)
MindLine Trans+ 0300 330 5468 (Fri only, 8pm – midnight)
TRUK Listens 0800 009 6640 (8am – midnight)
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