I uploaded yesterday's transcript to ChatGPT and asked it to analyse the GLP's chances of success, with reference to the judgment in For Women Scotland V the Scottish Ministers. The response I got was very different to pp. I know AI generated analysis need to be taken with a pinch of salt, but this seems more realistic to me.
- The essence of the GLP case
GLP is challenging the lawfulness of the EHRC’s “Interim Update on the Practical Implications of the Supreme Court Judgment in For Women Scotland” (April 2025).
That update was meant to advise employers and service providers on how to interpret single-sex exceptions under the Equality Act 2010 (EA 2010) following the Supreme Court’s ruling in For Women Scotland.
GLP’s claim has three grounds:
- Erroneous analysis of the law — that the EHRC’s guidance misstates or misapplies the Equality Act as interpreted in For Women Scotland.
- Breach of the EHRC’s statutory duties — under the Equality Act 2006, to promote equality and human rights, and to issue guidance responsibly.
- Incompatibility with Convention rights — that even if the guidance correctly states domestic law, the result is incompatible with the ECHR (especially Articles 8 and 14).
⚖️ 2. The For Women Scotland precedent (UKSC 2025)
The For Women Scotland case is a binding Supreme Court authority that:
- Defines “sex” in the Equality Act 2010 as biological sex, not acquired gender under a Gender Recognition Certificate (GRC).
- Holds that this definition applies across the Act — including for single-sex exceptions, quotas, and other sex-based rights.
- Confirms that trans people are still protected under the separate protected characteristic of “gender reassignment”.
- States that the EHRC is an “expert statutory body”, but its guidance must still reflect the law as enacted and interpreted by the courts (para 247).
This judgment decisively closed the door on interpreting “sex” as including a person’s legally acquired gender. That is a formidable barrier to GLP’s first ground.
🧩 3. Application of that precedent to GLP’s challenge
Let’s map each GLP ground to the precedent:
Ground 1 – Alleged erroneous analysis of the law
GLP claims the EHRC’s “Interim Update” misrepresented the law.
But the EHRC’s update was, according to the transcript, expressly intended to explain For Women Scotland to non-specialist audiences — i.e., that “sex” in the EA 2010 now means biological sex.
SWIFT J: “So it’s the EHRC’s take on the consequences of For Women Scotland.”
STILITZ KC: “Yes, indeed.”
That admission weakens GLP’s first ground. If the guidance correctly followed the Supreme Court’s reasoning — however unwelcome that reasoning may be to GLP’s clients — then it is legally accurate, and thus not erroneous.
GLP might argue that EHRC overstated or oversimplified the consequences, but that’s a factual and policy disagreement, not a legal error.
→ Likely outcome: This ground will almost certainly fail, because the court will treat For Women Scotland as authoritative and binding on the EHRC.
Ground 2 – Breach of statutory duties
GLP argues that the EHRC, as the equality regulator under the Equality Act 2006, had a duty to promote equality and avoid harm to minority groups.
However, those are purposive duties — broad and aspirational. Section 13 of the 2006 Act expressly empowers the Commission to issue “advice or guidance” on the meaning or effect of enactments.
From the transcript, Swift J pressed this issue:
SWIFT J: “Those sections so far are all describing the purposes for which the Commission should exercise its powers?”
STILITZ KC: “Indeed.”
That judicial exchange shows the court’s likely approach: the Commission’s purpose is not a legal constraint preventing it from restating the law as declared by the Supreme Court. Its duty is to accurately explain the law, not to reinterpret it in a way more favourable to a particular group.
→ Likely outcome: The EHRC did not breach its statutory duties by issuing lawful, accurate guidance, even if the outcome is perceived as discriminatory. Ground 2 probably fails.
Ground 3 – Incompatibility with Convention rights
This is the claim’s most arguable ground: even if the guidance reflects the law, GLP may seek a declaration of incompatibility under the Human Rights Act 1998, alleging that the underlying statutory position (biological definition of sex) violates Articles 8 (private life) and 14 (discrimination).
However, the hurdle is immense:
- The Equality Act 2010 has already been judicially interpreted by the UK Supreme Court.
- The Administrative Court cannot “read down” that interpretation under section 3 HRA to change the meaning of “sex”; only Parliament can amend the statute.
- Declarations of incompatibility are rarely granted where Parliament deliberately struck a balance (here, between sex-based rights and trans rights).
- The EHRC, as a public authority, merely summarised the law; it didn’t create it. A declaration against the EHRC guidance alone wouldn’t alter the underlying incompatibility.
→ Likely outcome: Possible academic discussion but very unlikely to succeed.
🧭 4. Additional observations
A. Status of the EHRC guidance
The transcript confirms it was issued under s.13(1)(d) of the Equality Act 2006, not as a formal Code of Practice.
That means:
- It’s not binding on courts or tribunals;
- It doesn’t create enforceable obligations;
- It’s an advisory document that can’t by itself infringe rights.
Therefore, any “illegality” argument is conceptually weak: the document has no legal force, so its publication cannot of itself cause unlawful discrimination.
B. Academic / mootness argument
The guidance had been withdrawn by October 2025, before the hearing. Swift J may therefore find the claim academic unless GLP shows a continuing impact.
Courts are cautious about deciding academic or hypothetical challenges unless they have systemic importance.
📊 5. Probable judicial approach
Given Swift J’s questions and tone in the transcript:
- He recognises For Women Scotland as binding and clear;
- He understands the EHRC acted within its statutory power;
- He may view the challenge as a policy disagreement dressed up as a legal claim.
Unless there’s a procedural irregularity or clear misstatement of law (which appears absent), the court will likely dismiss the claim.
🧮 6. Assessment of GLP’s prospects
GroundCore argumentEffect of For Women ScotlandLikelihood of success
- Erroneous analysis of law
EHRC misread judgment
Supreme Court precedent directly contradicts GLP
❌ Very low
- Breach of duties
EHRC acted contrary to equality aims
Duties are broad; EHRC accurately applied law
❌ Low
- Human rights incompatibility
Law itself incompatible
Declaration possible but unlikely; EHRC not author of law
⚠️ Low–moderate (symbolic only)
Overall estimated chance of success: ~20–30%.
The case is weak on the merits but may have advocacy value in framing future reform debates or appealing to the EHRC’s discretion.
🧾 7. Conclusion
In light of For Women Scotland v Scottish Ministers:
- The Good Law Project faces an uphill struggle.
- The Administrative Court will be bound by the Supreme Court’s definition of “sex” and will likely find the EHRC’s guidance lawful and accurate.
- The most that GLP might achieve is a symbolic finding that the guidance caused confusion or was poorly justified — not a substantive victory.
Predicted outcome: The claim will probably be dismissed, though Swift J may express sympathy for the individual claimants’ concerns and encourage clearer future communication by the EHRC.