Post For Women Scotland: Where Are We Now?

Introduction

On 16 April 2025 the Supreme Court handed down Judgment in the case of For Women Scotland v The Scottish Ministers, and considered how the terms “man”, “woman” and “sex” should be interpreted within the Equality Act 2010 - a decision that we have previously summarised. This article reflects on where we are now, nine months on.  

What is the Current Position?

Case Developments and Judgments

Kelly v Leonardo UK Ltd

This case concerned allegations of sex discrimination and harassment relating to the company's toilet access policy. Kelly, a female engineer, claimed that Leonardo’s policy permitting access to toilet facilities based on gender identity rather than biological sex amounted to harassment, direct sex discrimination, and indirect sex discrimination. Kelly argued that the policy effectively rendered all toilets “mixed sex,” creating a disadvantage for women, particularly during menstruation, pregnancy, or for those with religious or cultural privacy needs.

The Tribunal dismissed all complaints.  It concluded that the toilet access policy did not constitute unwanted conduct related to sex, nor did it create an intimidating or hostile environment for Kelly.  The Tribunal found that the policy applied equally to all employees and did not treat Kelly less favourably than a male comparator. It also concluded that the toilet access policy was a proportionate means of achieving a legitimate aim, namely treating transgender employees lawfully and creating an inclusive workplace. Although it recognised that the policy was introduced without proper consultation or an Equality Impact Assessment.

Peggie v Fife NHS Health Board & Dr Upton

The Claimant brought several claims under the Equality Act 2010 against her employer (the First Respondent) and Dr Upton (the Second Respondent), a trans doctor also employed by the First Respondent. These claims arose from the Second Respondent’s authorised use of the female changing facilities. In addition, the Claimant contended that this arrangement contravened the Workplace (Health, Safety and Welfare) Regulations 1992.

The Tribunal held that it had no jurisdiction to rule on the 1992 Regulations, it also dismissed the individual claims against the Second Respondent as they were not properly pleaded. However, the Tribunal found the First Respondent had subjected the Claimant to unlawful harassment under the Equality Act 2010, but dismissed the rest of her claims. The Tribunal based its harassment finding on the following: 

1. The failure to revoke the Second Respondent’s permission to use the female changing room after the Claimant complained, pending the introduction of new rotas separating their shifts.
2. Taking an unreasonable length of time to investigate the Second Respondent’s allegations against the Claimant.
3. References to patient care allegations against the Claimant.  
4. Instructing the Claimant not to discuss the case, which was clarified two weeks later as being limited only to the investigation.

The Claimant relied on the For Women Scotland v Scottish Ministers case, arguing that it required employers to define ‘woman’ as biological female for all purposes, including the use of workplace facilities. The Tribunal held that this case concerned the definition of “sex” in the context of public services, not workplace facilities. In reaching its conclusion, the Tribunal considered:

• the options reasonably available to the employer, 
• the nature and extent of the Second Respondent’s transition and how they appeared to others,
• how the Second Respondent presented to colleagues,
• the extent to which there were complaints from other staff, 
• what the employer knew or ought to have known, and 
• options for use of the facilities. 

On this basis, it held that granting permission was initially lawful as there had been no complaints. However, once the Claimant raised concerns, the employer should have reassessed that decision, explored alternatives, and revoked the permission on an interim basis. The permission became lawful when a solution was later found (i.e. the Claimant and Second Respondent not being at work together and not using the changing room at the same time), as no other staff member had made a complaint to the First Respondent.

Watch List

Challenge to rules on transgender pupils in schools and transgender people in custody

For Women Scotland, who won the Supreme Court case in April 2025, are currently challenging the Scottish Government over policies they say are inconsistent with the ruling.  This includes a current legal challenge suggesting that the rules on transgender pupils in schools and transgender people in custody are in breach of, and inconsistent with the April 2025 Judgment.  

European Court of Human Rights case in respect of the Supreme Court decision

Victoria McCloud, the UK’s first transgender judge is seeking to pursue a case against the UK in the European Court of Human Rights by way of challenge to the process that led to the Supreme Court ruling suggesting that her Article 6 right to a fair trial was overridden because judges did not hear from any transgender group or individuals.

The Good Law Project Judicial Review of the ECHR guidance

The Good Law Project, alongside three individual Claimants, have brought a Judicial Review challenge against the interim update published by the Equalities and Human Rights Commission (“EHRC”) immediately following the Supreme Court’s decision in the For Women Scotland case, while it was consulting and updating its Code of Practice. The interim update has since been removed from the EHRC’s website following a draft of the updated Code having been submitted to Ministers for approval. The Claimants argue that the EHRC’s interpretation of the Supreme Court’s Judgment in its interim update was overly simplistic and legally flawed, including insofar as it suggested that rules on single sex spaces would not apply if trans-people were admitted to such a space or service that did not correspond with their biological sex. 

The Good Law Project’s claim was heard in the High Court in November 2025, and Judgment is awaited. It is anticipated that the EHRC’s updated Code will be based on the same legal interpretation as in the EHRC’s interim update, so the outcome of these proceedings will be important when analysing the updated Code of Practice in due course. The Government was an Interested Party in the proceedings and informed the court that the outcome of the claim would likely be material to the Ministers’ consideration of the EHRC’s draft updated Code.

Sex Matters challenge to Hampstead Heath ladies’ bathing pond admissions policy

The charity ‘Sex Matters’ has brought a Judicial Review against the City of London Corporation (which manages the ladies’ bathing pond at Hampstead Heath), seeking to challenge an admissions policy which currently permits transwomen to swim at the ladies’ pond. Sex Matters argues that the admissions policy is unlawful following the decision in For Women Scotland. The City of London Corporation recently consulted the public on future access rules to the bathing pond to develop a new policy, which is expected early in 2026, and argues that the claim brought by Sex Matters is premature. A hearing was held on 17 December 2025 to determine whether Sex Matters should be granted permission to proceed with the claim. The court’s decision is expected in January 2026. 

Challenges to workplace policies

The Employment Tribunal decision in Hutchinson & Ors v County Durham & Darlington NHS Trust (known as the “Darlington Nurses case”) is expected in early 2026. This is a case brought by eight nurses challenging the Trust’s ‘Transitioning In The Workplace Policy’ which allows transgender staff to use facilities on the basis of gender identity as opposed to sex. The nurses bring claims on the grounds of indirect sex discrimination, harassment related to sex or perceived gender reassignment, and victimisation.  

Regulatory Guidance

Updated EHRC Code of Practice

The EHRC provided an updated Code of Practice on Services, Public Functions and Associations (the Code) to the Government on 4 September 2025 for ministerial approval, and the government has confirmed that it is considering it. This followed an extended public consultation in light of the Supreme Court Judgment. 

On 15 October 2025 the EHRC wrote to Ministers asking for approval of the updated Code to be expedited, given that the current version of the Code published in 2011 has now been out of date for some time and is inconsistent with the law following the For Women Scotland Judgment. Ministers may however wait to see the outcome of the Good Law Project Judicial Review claim before deciding whether to approve the updated Code. 

In terms of next steps, if the UK Government approves the draft updated Code it will then put it before Parliament, who will then have 40 days to review it.  

If Parliament does not disapprove the updated Code, the Government will then set a date for it to come into force.  At that time, the Code will have legal status as a Guidance framework for how service providers, those with public functions and associations can meet the duties set out in the Equality Act 2010.

In the meantime, the EHRC has advised duty-bearers to seek specialist legal advice to understand their obligations under the Equality Act 2010. The EHRC has also asked for the Government to formally revoke the 2011 version of the Code so that out of date guidance contained within it is no longer promoted or relied upon.  

NHS England Guidance – Delivering Same Sex Accommodation

Following the Supreme Court Judgment, NHS England’s Guidance on ‘Delivering same-sex accommodation’ (2019) is also currently being reviewed.  It states: 

“Revised guidance which supports privacy, dignity and safety for all patients in hospital accommodation will be published as soon as possible”.

“All providers of NHS-funded care are reminded that they are expected to provide high quality care that meets all patients’ clinical needs and safeguards them from the risk of harm and ensures their privacy and dignity when they are admitted to hospital”.

There is no date given as to when this Guidance can be expected, although it is unlikely to be prior to the publication of the above EHCR Code of Practice which will be key.

How we can help

At Bevan Brittan we are proud to have a specialist multi-disciplinary team spanning our Health & Care Regulatory, Employment, and Litigation & Advisory departments, dedicated to advising on matters related to complex gender identity and philosophical belief. This team, brings a unique combination of experience and skill from across the health, social care, local authority and independent sectors.

Health & Care Regulatory key contacts, Jane Bennett, Ruth Atkinson-Wilks, and Julia Jones  have a broad depth of knowledge across complex legal queries, human rights, data protection / records management , substantive policy reviews and training in respect of all aspects of both the Gender Recognition Act 2004 and Equality Act 2010.  In particular the team advises NHS acute, mental health and Integrated Care Boards, as well as Local Authority and private Providers in relation to the provision of health and social care to individuals, including on hospital wards, in prisons, and in wider public and private care settings, as well as dealing with challenging legal queries for sensitive gender related matters in relation to the same.  

Employment key contacts, Courtney Janotta, Alastair Currie, Naomi Compton and Samantha Owen are highly experienced in supporting employers to navigate sensitive discussions involving complex gender identities, gender re-assignment, gender critical beliefs, and single-sex spaces. We provide strategic, board-level briefings, employee-facing policy reviews, support with sensitive grievance and complaints processes, deliver training for HR and managers on Equality & Diversity in the workplace, and act on behalf of employers facing litigation involving gender reassignment or belief discrimination in the Employment Tribunal, Employment Appeal Tribunal and Court of Appeal. 

Litigation & Advisory key contacts, Jason Tandy, Amy Tschobotko, Jonathan Lodwick and Virginia Cooper advise service commissioners and providers (including local authorities and health service bodies), education bodies and other public authorities on their obligations under the Equality Act 2010, including on striking the balance of different or competing interests, consultation on changes to policies or practices, compliance with the Public Sector Equality Duty, and undertaking Equality Impact Assessments. We provide strategic advice on how services should be structured and delivered in order to mitigate legal risk, as well as assist with the response to any legal claims that do arise, including in defence of Judicial Review challenges to policies and discrimination claims that may be brought in the civil courts.

Consulting legal experts across all relevant fields brings a unique and innovative perspective to clients to meet the wider-ranging challenges faced organisationally as you deal with the various and complex legislation in these sectors.  That team understands the practical way the relevant legal frameworks impact with a range of issues faced, and the combined skill set of specialist lawyers brings a rich offering and benefit to both our public and independent sector clients.

If you wish to discuss how we can support you or your organisation, please contact Jane Bennett, Courtney Janotta, or Jason Tandy.