Ignored Legal Authorities, Principles and Precedents in For Women Scotland v Scottish Ministers [2025]

The recent Supreme Court ruling that interprets “sex” in the Equality Act 2010 as referring exclusively to biological sex raises serious legal and constitutional concerns. Most strikingly, the judgment omits key legal authorities, statutory provisions, and precedents that have long governed the treatment of trans people under UK equality law.

This is not a matter of oversight on marginal points. The decision effectively dismantles a well-established legal framework designed to ensure that trans individuals are able to access services, facilities, and protections in accordance with their legally recognised gender. In doing so, the Court has not merely reinterpreted the law — it has fundamentally disrupted the legal coherence that has underpinned trans rights for nearly two decades.

Key Precedent Case Law Ignored

Chief Constable of West Yorkshire v A [2004] UKHL 21¹
- Confirmed trans-inclusive interpretation of “woman” in the Sex Discrimination Act 1975.
- Undermines the claim that “sex” always meant biological sex in equality law.

In my view community law required in 1998 that such a person be recognised in her reassigned gender for the purposes covered by the Equal Treatment Directive This conclusion does not depend upon Goodwin and this case can readily be distinguished from Bellinger. I would dismiss this appeal.

Croft v Royal Mail Group plc [2003] EWCA Civ 1045²
- Held that a trans woman could not be excluded from using female toilets indefinitely just because she hadn’t had surgery.
- Establishes that equality law (even before the GRA) recognised the right to access sex-specific facilities in line with gender identity, depending on transition stage.
- Cited only obliquely by the Supreme Court in FWS, and not for its key holding on discrimination and toilet access.
- FWS appears to reverse the position in Croft by implying that all trans women or men can lawfully be excluded from facilities aligned with their gender identity.

I do not accept that the respondents can escape liability on the basis that the applicant was at the material time a man and that a prohibition on the use of the female toilets meant that she was treated no differently from other men. Transsexuals have been recognised by statute, not as a third sex, but as a group who must not be discriminated against as such. That involves not only providing members of the group with toilet facilities no less commodious than other toilets but considering whether the transsexual should be granted the choice she seeks. I would accept, applying the statement of Lord Nicholls in Bellinger, paragraph 41, and Goodwin paragraph 90, that a permanent refusal to refuse that choice to someone presenting to the world as a woman could be an act of discrimination even if the person had not undergone the final surgical intervention.

[Bellinger, paragraph 41³] But the problem is more fundamental than this. It is questionable whether the successful completion of some sort of surgical intervention should be an essential prerequisite to the recognition of gender reassignment. If it were, individuals may find themselves coerced into major surgical operations they otherwise would not have. But the aim of the surgery is to make the individual feel more comfortable with his or her body, not to ‘turn a man into a woman’ or vice versa. As one medical report has expressed it, a male to female transsexual person is no less a woman for not having had surgery, or any more a woman for having had it: see Secretary, Department of Social Security v SRA (1993) 118 ALR 467, 477.

Taylor v Jaguar Land Rover (2020)⁴
- Employment Tribunal held that directing a non-binary trans employee to use disabled toilets amounted to direct gender reassignment discrimination.
- Demonstrates the modern evolution of legal protection far beyond the outdated approach in Croft.

telling a transitioning person to use the disabled toilets is, at the very least, potentially offensive to them because it suggests that their protected characteristic equates to a disability.

Misreading and Undermining of Key Statutes

Gender Recognition Act 2004, Section 9(1)⁵
- A person’s sex becomes their acquired gender “for all purposes” upon receipt of a GRC.
- Parliament intended full legal recognition, including for the purposes of discrimination law.
- The Supreme Court’s reading effectively neutralises this section, leaving trans people legally one gender in some contexts but not others.

(1)Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

Equality Act 2010, Schedule 3, Paragraph 28⁶
- Provides a legal framework for exclusions from single-sex services where “a proportionate means of achieving a legitimate aim” is established.
- Court treated this as allowing categorical exclusion of trans people without a GRC, which contradicts how the provision has been interpreted in practice and in AEA v EHRC.

A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

Explanatory Notes and Parliamentary Intent Ignored

Explanatory Notes to the Gender Recognition Bill (2004)⁷
- Stated clearly that a trans woman with a GRC becomes a woman “for all purposes”, including protection under the SDA 1975.
- Parliament intended broad legal effect, not a narrow bureaucratic status.

Subsection (1) states the fundamental proposition that once a full gender recognition certificate is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes. She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and she would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.

Ministerial Statement: Lord Filkin (Hansard, 18 December 2003)⁸
- Confirmed that trans people with a GRC gain rights under Sex Discrimination Act as people of their acquired gender.
- Clear, authoritative statement falling within Pepper v Hart [1993] AC 593 rules on interpreting ambiguous legislation.
- Cited in submissions (e.g. Amnesty International), but ignored by the Court.

I understand that that is the Government’s intention and I welcome the changes made to Clause 9(1) to make that more explicit. But, I would welcome reassurances from the Minister that—with particular regard to the Sex Discrimination Act 1975—the Government view the Bill as sufficiently clear in that respect and beyond possible misinterpretation.

On the important issue of discrimination, Clause 9 makes it clear that a transsexual person would have protection under the Sex Discrimination Act as a person of the acquired sex or gender. Once recognition has been granted, they will be able to claim the rights appropriate to that gender.

EHRC Statutory Code of Practice: Overlooked and Undermined

The EHRC Code (Services, Public Functions and Associations)⁹ states that:
- Trans people should generally be treated in line with the gender in which they present, regardless of GRC status.
- This is embedded in para 13.57 and in legal practice since the EA2010 came into force.

If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.

In R (Authentic Equity Alliance) v EHRC [2021] EWHC 1623 (Admin)¹⁰:
- Mr Justice Henshaw found it not arguable that the EHRC guidance was legally incorrect.
- Held that trans women without a GRC cannot be excluded solely for being legally male; any exclusion must pass a proportionality test under Schedule 3.
- FWS does not cite or consider this case, and appears to proceed on the erroneous belief that trans people without a GRC may be excluded categorically.

Thus, the claimant’s approach would place transsexual women without a GRC in the same position for these purposes as all other birth males. That is clearly incompatible with the tenor of the Act, which plainly sets out distinct provisions in s.19 (as applied to gender reassignment) and in Schedule 3 para. 29, which apply to the protected characteristic of gender reassignment: over and above, and separately from, those in paras. 26 and 27 of Schedule 3 relating to sex discrimination

Equality Act 2006, s.15(4)¹¹
- Imposes a statutory duty on courts to consider the EHRC’s statutory Codes of Practice.
- The Court’s failure to discuss key passages of the Code, or the AEA case upholding it, arguably breaches this legal obligation.

(4)A failure to comply with a provision of a code shall not of itself make a person liable to criminal or civil proceedings; but a code—

(a)shall be admissible in evidence in criminal or civil proceedings, and

(b)shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.

Unexplored Contradictions and Flawed Reasoning

The Court argues that recognising GRCs under the Equality Act would be “unworkable” because:
- It would create a distinction between trans people with and without GRCs, and service providers wouldn’t know who had one.
- But this logic ignores that:
  1. Trans people are often indistinguishable from cis people, not just from each other.
  2. Service providers have always been expected to treat trans people in line with presentation, not legal documentation—regardless of GRC.
The EHRC’s longstanding guidance confirms that the system has worked effectively for 15+ years using this approach.
The Court’s assumption at para 217—that trans women without a GRC have no legal right to access female-only spaces—is contradicted by case law (AEA v EHRC), guidance (EHRC Code), and human rights norms (Goodwin, AP v France).

Human Rights Law and ECHR Jurisprudence Overlooked

Goodwin v UK (2002)¹² and Van Kück v Germany (2003)¹³
- Recognise the right to legal gender recognition and gender identity under Article 8¹⁴.
- Legal status must be coherent and comprehensive, not conditional or piecemeal.

[Goodwin v UK (2002)] 93. Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention. Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment, it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant. There has, accordingly, been a failure to respect her right to private life in breach of Article 8 of the Convention.

AP, Garçon and Nicot v France (2017)¹⁵
- GRC-type processes cannot be treated as a precondition for equal treatment under anti-discrimination law.

135. Accordingly, the refusal of the second and third applicants’ requests for a change in civil status, on the grounds that they had not provided proof of the irreversible nature of the change in their appearance – that is to say, demonstrated that they had undergone sterilisation surgery or medical treatment entailing a very high probability of sterility – amounts to a failure by the respondent State to fulfil its positive obligation to secure their right to respect for their private lives. There has therefore been a violation of Article 8 of the Convention on this account in respect of these applicant

Hämäläinen v Finland (2014)¹⁶
- Courts must ensure legal consistency across areas of law to avoid arbitrary burdens on trans individuals.

The Supreme Court’s judgment arguably creates a fragmented, incoherent legal framework, where a person may be legally recognised as a woman only in theory, but denied rights in practice. That contradicts the very basis of the UK’s response to Goodwin via the GRA 2004.