Myths about For Women Scotland v The Scottish Ministers

Since the Supreme Court handed down its decision in For Women Scotland v The Scottish Ministers in April 2025, there has been an avalanche of misinformation about the what the ruling says, what is mentions, and what it doesn’t mention. This post contains a list of myths about the ruling with sources to combat these myths. Where possible, I have avoided adding in my own analysis of how the ruling fits into our existing equality law framework. This is to ensure that the reader is presented with nothing more than the evidence needed to combat this misinformation.

Myth: The judgment does not mention toilets

The judgment mentions sanitary conveniences or facilities several times.

First, at paras 41-42 discussing the Sex Discrimination Act 1975:

41 Certain exceptions were built into the legislation, some of which were repealed long before the whole Act was superseded by the EA 2010. For example, according to section 6(3) as originally enacted, the prohibition on discrimination under section 6(1) and (2) did not apply to employment '“for the purposes of a private household” or where the number of people employed was not more than five. The exception for small employers was repealed by the Sex Discrimination Act 1986 and the private household exception re-enacted in a much narrower form by section 1(2) of the 1986 Act, limiting it to where objection might reasonably be taken by a person living in the home to physical or social contact with someone of the opposite sex.

42 Section 7 of the SDA 1975 as enacted provided the exception which is reflected in the subsequent legislation, namely that discrimination is not unlawful where sex is a genuine occupational qualification (“GOQ”). The exception does not apply to discrimination in the terms and conditions on which a woman is employed; once a woman has been engaged in the job, there can be no genuine occupational reason for giving her less favourable terms and conditions than her male colleagues. The circumstances in which the defence of GOQ could be relied upon included the following:

(a) Where the essential nature of the job called for a man for reasons of physiology (other than physical strength or stamina), or for reasons of authenticity in dramatic performances: section 7(2)(a);

(b) Where the job needed to be held by a man to preserve decency or privacy because it was likely to involve physical contact or where men would be in a state of undress or using sanitary facilities: section 7(2)(b);

(c) Where the job holder had to live in premises provided by the employer and there were no facilities to accommodate women either to sleep separately or to use sanitary facilities. This was subject to the proviso that the exception applied only if it was not reasonable to expect the employer to provide separate facilities: section 7(2)(c);

(d) The job holder worked in a prison or hospital where all the people present were men and it was reasonable that the job should not be held by a woman: section 7(2)(d).

Second, at paras 50-53 summarising the meaning of sex within the Sex Discrimination Act 1975:

50 What we draw from this consideration of the SDA 1975 are the following points.

51 First, there can be no doubt that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex - the trans community of course existed at the time but their recognition and protection did not.

52 Secondly, the legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women.

53 Thirdly, a range of other exceptions were considered necessary and reasonable, particularly (a) in relation to sport and competitive activity where typical masculine physique would give an unfair advantage and (b) where positive action was needed to ensure that there was a reasonable representation of men and women on the boards of certain bodies.

Third, at paras 222-224 in the context of communal accommodation within the Equality Act 2010:

222 There is a specific exemption for communal accommodation in Schedule 23, paragraph 3 which allows for both sex discrimination and gender reassignment discrimination as follows: “(1) A person does not contravene this Act, so far as relating to sex discrimination or gender reassignment discrimination, only because of anything done in relation to - (a) the admission of persons to communal accommodation; (b) the provision of a benefit, facility or service linked to the accommodation.”

223 Communal accommodation is defined as follows:

“(5) Communal accommodation is residential accommodation which includes dormitories or other shared sleeping accommodation which for reasons of privacy should be used only by persons of the same sex.

“(6) Communal accommodation may include - (a) shared sleeping accommodation for men and for women; (b) ordinary sleeping accommodation; (c) residential accommodation all or part of which should be used only by persons of the same sex because of the nature of the sanitary facilities serving the accommodation.”

224 Here too it is plain that sex has its biological meaning. The Inner House however, held at para 59 that “sex” in this context is defined as including birth sex for those still living in that sex, and “acquired sex” for those in possession of a GRC in the opposite gender. In our judgment, this would undermine the very considerations of privacy and decency between the sexes both in the availability of communal sleeping accommodation and in the use of sanitary facilities which the legislation plainly intended to provide for. If sex has a certificated sex meaning it is difficult to envisage any circumstances in which this gateway could sensibly be met since there would be no rational basis for saying that “for reasons of privacy” any communal accommodation and sanitary facilities should be used by women and trans women with a GRC (so legally female but biologically male) only, but not by trans women without a GRC who may be indistinguishable from those in possession of a GRC (and vice versa). This interpretation would run contrary to the plain intention of these provisions.

Myth: The judgment does not mention changing rooms

The judgment mentions changing rooms at several points:

211 Part 3 of the EA 2010 regulates the provision of services and public functions, and we have set out above the terms of the prohibition in section 29 (making it unlawful, among other things, to discriminate in the provision of a service or the exercise of a public function). Schedule 3 contains exemptions from this general prohibition. As we shall explain, some of these permit what would otherwise constitute gender reassignment discrimination but make no similar provision for persons issued with a full GRC. Other provisions permit carve-outs from what would otherwise constitute sex discrimination under the EA 2010. In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances. These provisions are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group - for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) - for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence.

215 Paragraph 27 of Schedule 3 (“Single-sex services”) presents similar problems if a certificated sex interpretation is adopted. It deals with services provided to one sex only (for example rape or domestic violence counselling, domestic violence refuges, rape crisis centres, female-only hospital wards and changing rooms). It provides:

“(1) A person does not contravene section 29, so far as relating to sex discrimination, by providing a service only to persons of one sex if - (a) any of the conditions in sub-paragraphs (2) to (7) is satisfied, and (b) the limited provision is a proportionate means of achieving a legitimate aim.

“(2) The condition is that only persons of that sex have need of the service.

“(3) The condition is that - (a) the service is also provided jointly for persons of both sexes, and (b) the service would be insufficiently effective were it only to be provided jointly.

“(4) The condition is that- (a) a joint service for persons of both sexes would be less effective, and (b) the extent to which the service is required by persons of each sex makes it not reasonably practicable to provide separate services.

“(5) The condition is that the service is provided at a place which is, or is part of- (a) a hospital, or (b) another establishment for persons requiring special care, supervision or attention.

“(6) The condition is that- (a) the service is provided for, or is likely to be used by, two or more persons at the same time, and (b) the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.

“(7) The condition is that- (a) there is likely to be physical contact between a person (A) to whom the service is provided and another person (B), and (b) B might reasonably object if A were not of the same sex as B.”

216 The gateway conditions in paragraph 27(2) to (7) cannot be coherently applied if sex does not carry its biological meaning because it is hard to see how the condition in paragraph 27(2) (that only persons of one sex have need of the particular service) can be satisfied if each sex includes members of the opposite biological sex in possession of a GRC and excludes members of the same biological sex with a GRC.

217 Likewise, a certificated sex interpretation of the conditions in paragraph 27(6) and (7) (that a person of one sex might reasonably object to the presence of a person of the opposite sex, and the physical contact provision) will not be capable of being fulfilled in practice. Again, it is difficult to imagine how or in what circumstances it might be considered reasonable for a woman to object to members of the opposite sex (in condition (6)) where “the opposite sex” would include trans women without a GRC (who remain legally male) but not to “members of her own sex”. This would arise if by operation of section 9(1) of the GRA 2004 the group of “members of her own sex” were to include biological men with a GRC, and so legally female who may be physically and outwardly indistinguishable from the former group of trans women without a GRC. While many women in a female-only changing room or on a women-only hospital ward or in a rape counselling group might reasonably object to the presence of biological males, it is difficult to see how the reasonableness of such an objection could be founded on possession or lack of a certificate. This is so especially when the distinction does not track physical appearance or presentation, and the woman is unlikely to have any information about the GRC at the point at which her objection might be raised. A trans woman with a GRC who presents fully as a woman may feel she is more likely to prompt objections from other users if she enters the men’s changing room or other facilities than if she uses the women’s changing room or facilities. But in facing that dilemma she is in the same position as a trans woman without a GRC. Although such trans women may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and dignity of the other women users, the Scottish Ministers do not suggest that a trans woman without a GRC is legally entitled to do so.

Myth: The judgment did not consider trans people’s human rights

The judgment spoke about the Article 8 rights of trans people extensively, concluding that the Gender Recognition Act 2004 was required to meet the Article 8 rights of trans people, that the Act as enacted provided more protection than the ECHR required (pre-empting developments in ECHR jurisprudence) and that Article 8 is a qualified right and can be legitimately interfered with to protect the rights of others where justified. The fact that the Supreme Court concluded that the current law is compatible with the human rights of trans people does not mean that it did not consider them:

63 The enactment of the GRA 2004 was prompted by the judgment of the European Court of Human Rights (“ECtHR”) in Goodwin v United Kingdom (2002) 35 EHRR 18 (“Goodwin”) and by a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] 2 AC 467 (“Bellinger”). In Goodwin, the applicant’s biological sex was male but she had undergone gender reassignment surgery. The ECtHR held that it was a breach of the applicant’s right to respect for private life under article 8 of the Convention for there to be no legal recognition of her acquired gender. The ECtHR described the applicant as having initially undergone hormone therapy, grooming classes and voice training and as having “lived fully as a woman” since 1985. She later underwent gender reassignment surgery at a National Health Service hospital. The court referred to various di–culties faced by the applicant because of the failure of the law to recognise her acquired gender. These included her inability to change her birth certificate, and different treatment as regards social security and national insurance issues, pensions and employment. The court recognised that it had previously held that UK law did not interfere with respect for private life: para 73. But in the light of the then social conditions, it reassessed the appropriate application of the Convention.

64 The ECtHR was struck in particular by the fact that the National Health Service recognised the condition of gender dysphoria and provided reassignment surgery “with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs” (para 78). Yet there was no legal recognition of her changed status in law. The court discussed medical evidence about the causes of what it called “transsexualism” and noted that the vast majority of contracting states, including the UK, provided treatment including irreversible surgery. However, the ongoing debate about the exact causes of the condition were of diminished relevance because “given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role” it could not be suggested that there was “anything arbitrary or capricious in the decision taken by a person to undergo gender reassignment”: para 81.

65 The court concluded that the unsatisfactory situation in which postoperative transsexuals live in an intermediate zone which is not quite one gender or the other was no longer sustainable: para 90. 66 The Goodwin judgment was considered by the House of Lords in Bellinger where their Lordships were invited to declare a marriage valid which had been entered into by a man and a trans woman. Their Lordships declined to do so. Lord Nicholls referred to Goodwin and the Government’s announcement that it intended to bring forward primary legislation to address the issue. He said that recognition of Mrs Bellinger as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 “would necessitate giving the expressions ‘male’ and ‘female’ in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex”: para 36. Lord Nicholls went on:

“37. This would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced. The issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament, the more especially when the Government, in unequivocal terms, has already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive subject.”

67 The House of Lords held further that it was not possible to “read down” the 1973 Act and made a declaration of incompatibility under section 4 of the Human Rights Act 1998. 68 The GRA 2004 came into force on 4 April 2005 and provides a framework for recognising a person’s reassigned gender. The compatibility of the UK’s provision for recognition of gender reassignment with article 8 of the Convention was considered by the ECtHR again in Grant v United Kingdom (2006) 44 EHRR 1. There a trans woman complained that she was only entitled to receive her state pension at age 65, the age for men, rather than at 60, the age for women. She had been issued with a GRC once the GRA 2004 came into force. The court held that the duration of the applicant’s victim status lasted from the occasion on which she was refused a pension following the court’s judgment in Goodwin until the passing of the GRA 2004: para 43.

73 From its enactment, the GRA 2004 went further than the decision in Goodwin may strictly have required at that point to ensure compliance with article 8. The applicant in Goodwin had undergone what the ECtHR described as “the long and difficult process of transformation” (para 78), but the GRA 2004 recognised a broader class of transgender people as entitled to formal recognition even if they had not undergone surgery. In that respect, the GRA 2004 anticipated the decision of the ECtHR in AP, Gar on and Nicot v France (Application Nos 79885/12, 52471/13 and 52596/13) (unreported) 6 April 2017. In that case the court held that it was a breach of article 8 to make legal recognition of a personÕs transgender status conditional on sterilisation surgery or on treatment which entailed a very high probability of sterility: see para 120 of the judgment. The court noted that imposing such a pre-condition presented transgender persons “with an impossible dilemma” if they did not want to undergo sterilisation surgery or treatment (para 132). That condition amounted to a violation of article 8. However, there was no breach of article 8 in requiring a diagnosis of gender dysphoria. There was at that time near-unanimity amongst contracting states in requiring such a diagnosis and imposing that requirement did not infringe article 8: see para 140.

85 In Carpenter v Secretary of State for Justice [2015] 1 WLR 4111 a trans woman challenged the requirement under section 3(3) of the GRA 2004 that she had to provide details to the Panel of the surgical treatment she had undergone for the purpose of modifying her sexual characteristics. She argued this infringed her article 8 rights because applicants could be issued with a certiÞcate without having undergone surgery and without therefore having to provide such details. The challenge was rejected. Thirlwall J accepted that the requirement to provide medical details engaged the article 8 right to respect for private life. However, where an applicant had undergone surgery, or planned to do so, that fact was highly relevant, if not central, to the application and was plainly necessary to the Panel’s consideration of the criteria in section 2(1)(a) to (c) of the GRA 2004. Thirlwall J said at para 23: “Undergoing or intending to undergo surgery for the purposes of modifying sexual characteristics is overwhelming evidence of the existence now or previously of gender dysphoria and of the desire of the applicant to live in the acquired gender until death. No competent, conscientious medical practitioner could produce a report on gender dysphoria (past or present) which did not refer to treatment received.”

86 She also recorded at para 24 of her judgment that counsel for the Secretary of State had told the court that where an applicant has not undergone any treatment, it is the Panel’s usual procedure to require the second report submitted by the applicant to explain why this is the case. She concluded (para 28) that given that the information was necessary to the decision to be taken and that its dissemination beyond the Panel was prohibited, the provision of the information was necessary and proportionate to the legitimate aim and that there was no breach of article 8.

Myth: The judgment did not define biological sex

The Supreme Court defined biological sex as the sex of a person at birth, relying on both the ordinary meaning of the phrase and making reference to established case law on the issue.

7 We also use the expression “biological sex” which is used widely, including in the judgments of the Court of Session, to describe the sex of a person at birth, and we use the expression “certificated sex” to describe the sex attained by the acquisition of a GRC.

The Supreme Court did not elaborate on meaning of this definition in its judgment.

Myth: Because the Supreme Court did not elaborate on ‘sex at birth’, our law has no definition of biological sex.

The reality is that there is existing case law from the Superior Courts on the meaning of ‘sex at birth’, or ‘biological sex’. The fact that the Supreme Court did not rehash that case law does not mean that the case law does not exist or is not applicable to resolving a dispute as to someone’s biological sex.

The leading case is Bellinger v Bellinger [2003] UKHL 21 at paras. 5-11:

5 The indicia of human sex or gender (for present purposes the two terms are interchangeable) can be listed, in no particular order, as follows. (1) Chromosomes: XY pattern in males, XX in females. (2) Gonads: testes in males, ovaries in females. (3) Internal sex organs other than the gonads: for instance, sperm ducts in males, uterus in females. (4) External genitalia. (5) Hormonal patterns and secondary sexual characteristics, such as facial hair and body shape: no one suggests these criteria should be a primary factor in assigning sex. (6) Style of upbringing and living. (7) Self-perception. Some medical research has suggested that this factor is not exclusively psychological. Rather, it is associated with biological dierentiation within the brain. The research has been very limited, and in the present state of neuroscience the existence of such an association remains speculative.

6 In the vast majority of cases these indicia in an individual all point in the same direction. There is no di±culty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual. In such cases classiÞcation of the individual as male or female is best done by having regard to all the factors I have listed. If every person has to be classiÞed as either male or female, that is the best that can be done. That was the course, in line with medical opinion, followed by Charles J in W v W (Physical Inter-sex) [2001] Fam 111, 146dÐf. That is not the problem arising in the present case.

7 Transsexual people are to be distinguished from inter-sexual people. Transsexual is the label given, not altogether happily, to a person who has the misfortune to be born with physical characteristics which are congruent but whose self-belief is incongruent. Transsexual people are born with the anatomy of a person of one sex but with an unshakeable belief or feeling that they are persons of the opposite sex. They experience themselves as being of the opposite sex. Mrs Bellinger is such a person. The aetiology of this condition remains uncertain. It is now generally recognised as a psychiatric disorder, often known as gender dysphoria or gender identity disorder. It can result in acute psychological distress.

8 The treatment of this condition depends upon its severity and the circumstances of the individual. In severe cases conventional psychiatric treatment is inadequate. Ultimately the most that medical science can do in order to alleviate the condition is, in appropriate cases, to rid the body of its intensely disliked features and make it accord, so far as possible, with the anatomy craved. This is done by means of hormonal and other treatment and major surgery, popularly known as a “sex change” operation. In this regard medical science and surgical expertise have advanced much in recent years. Hormonal treatment can change a person’s secondary sexual characteristics. Irreversible surgery can adapt or remove genitalia and other organs, external and internal. By this means a normal body of one sex can be altered so as to give the appearance of a normal body of the other sex. But there are still limits to what can be done. Gonads cannot be constructed. The creation of replica genital organs is particularly difficult with female to male gender reassignment surgery. Chromosomal patterns remain unchanged. The change of body can never be complete.

9 Surgery of this nature is the last step in what are typically four steps of treatment. The four steps are psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the “real life experience”), and finally, in suitable cases, gender reassignment surgery. In February 1981 Mrs Bellinger, having been through the previous stages of treatment, successfully underwent this form of surgery. This involved removal of her testes and penis and, in the words of Johnson J, “the creation of an orifice which can be described as an artificial vagina, but she was still without uterus or ovaries or any other biological characteristics of a woman.” A chromosomal test, dated 8 April 1999, showed her to have a karyotype 46XY pattern, an apparently normal male karyotype.

10 For completeness I should mention in passing that a transsexual person is to be distinguished from a homosexual person. A homosexual is a person who is attracted sexually to persons of the same sex. Nor should a transsexual person be confused with a transvestite. A transvestite is a person who, usually for the purpose of his or her sexual gratification, enjoys dressing in the clothes of the opposite sex.

The present state of the law

11 The present state of English law regarding the sex of transsexual people is represented by the well known decision of Ormrod J in Corbett v Corbett (orse Ashley) [1971] P 83, 104, 106. That case, like the present one, concerned the gender of a male to female transsexual in the context of the validity of a marriage. Ormrod J held that, in this context, the law should adopt the chromosomal, gonadal and genital tests. If all three are congruent, that should determine a person’s sex for the purpose of marriage. Any operative intervention should be ignored. The biological sexual constitution of an individual is fixed at birth, at the latest, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means.

Myth: The judgment was only about people with GRCs.

Strictly speaking, this is true. However the previous myth about self-identification being the default in our law was explicitly rejected by the Supreme Court:

26 The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex. This appeal addresses the position of the small minority of trans people who possess a full GRC.

Myth: The judgment isn’t law

There isn’t much to say here. Supreme Court judgments are law. They have immediate effect, stating the law as it has always been. There is no need for Parliament, the Government, the EHRC, a Parliamentary Select Committee, random MPs or anyone else to act or be consulted before the judgment takes effect.

Myth: The judgment can be ignored until the EHRC Code of Practice is published and approved by Parliament

See above.