Ben Cooper’s Analysis of Supreme Court Judgement in FWS v Scottish Ministers

[UtopiaPlanitia]

Ben’s analysis of the judgement has been published and I thought FWS would be interested in reading it:

https://oldsquare.co.uk/wp-content/uploads/2025/07/FWS-Why-the-SC-decision-does-not-breach-trans-rights.pdf

It looks like it's just an Equality Act case.

Oh that’s a shame! I wonder whether it’s in the Darlington nurses case. Actually, there are a few changing room ones coming up, aren’t there?

If the laws were written with the definition of sex = biological sex (as that was the only understood definition of the time), why does it need to be a process of challenging each one to establish sex = biological sex throughout law?

Would there be any other way of just declaring sex = biological sex in all law (and gender = personality/identity)?

Sorry if this is a stupid thing to ask, I am just incredulous that it needs the expense, stress and time of multiple challenges when the whole concept of GI is so illogical as a basis of defining sex…

Because the Gender Recognition Act says a person's sex is changed "for all purposes" when they obtain a gender recognition certificate, including in relation to legislation that pre-dates the GRA (such as the Workplace Regulations). However the "for all purposes" does not apply if another piece of legislation would be rendered essentially meaningless or unworkable by using a certificated definition of sex. The SC went through the Equality Act and found this to be the case in relation to that Act. Another court will likely have to do the same for other legislation.

And just to add, this only applies to GRC holders. It is settled law that sex has a biological definition in situations where there is no GRC. In theory it could be challenged through the courts although the earlier FWS judgment in Scotland ruled on this and the case law that established it (Corbett v Corbett) has never successfully been challenged in the 50 years since that case.

Thanks. That seems inevitable! I'd also anticipate appeals, whatever way any case goes.

Ah, so any case that goes to court will have to involve someone with a GRC? Or can that just be a hypothetical person?

Usually you'd need an affected individual, so a person with a GRC to make a claim in the civil courts or employment tribunal, where their case is that they have been personally affected by an alleged breach of the law. In that sort of case, the defendant employer would (if they had any sense) counter the claim by saying they were providing single sex toilets in accordance with the Workplace Health and Safety Regulations and that the biological definition of sex applies to those Regulations.

Judicial Review is a bit different in that claims can be brought by organisations representing affected people (e.g. For Women Scotland fell into this category).

Any breach of the Workplace Regulations will be a case for the Health & Safety Executive not an Employment Tribunal.

Yes, that's right. Questions about the correct understanding of the Workplace Regs could however be an issue in an Employment Tribunal case if an employer were defending a claim (brought by a trans person) partly on the basis that they considered their provision of single sex toilets or changing facilities was required by the Workplace Regulations.

Ironically, reading this thread has brought to mind a recent podcast where a gay rights campaigner described Stonewall’s approach in the 80s and 90s. He said that’s well as lobbying those who they felt could be influenced to back their mission, they also worked hard to meet with groups who would likely always oppose gay rights. He said they didn’t, for a minute, think they would win them over, their aim was to become understood as people whose requests were not wildly unreasonable but simply conflicted with what those opposing them wanted and valued. He said this was very effective in creating a less febrile atmosphere surrounding gay rights - and this did contribute to their successes.

I think lessons could be learned from this. In addition to legal action, women’s groups can seek to have discussions with captured organisations, even where it is unlikely that they will significantly change their stance. The hope is that they will come to a better understanding of the motivations for sex based provision, specifically this not being about transwomen. Even just listening would reflect a major step forward because this alone will be opposed by TRAs.

Ben’s piece is quietly and firmly impressive in how it sets out the issues. He’s also a practicing KC specialising in discrimination cases so he’s a subject matter expert in a way many —loud— commentators are not. I suggest people bookmark it to send to any service providers or organisations they wish to complain to.

Particularly his footnote at the end. I tried to copy and paste but am out and on my phone so I can’t. In it he cautions service providers etc against following the advice of “commentators on social media (which I avoid)” 😂 because it won’t protect them from discrimination claims.

It's a technical legal document but the language he uses makes it easy for the lay person to understand (or for TRAs to wilfully ignore). His step by step approach explaining the issues & the logical outcomes is a model of clarity.

Here are the conclusions and the footnote:

"Conclusions

129. Following the decision of the Supreme Court in FWS, trans people remain fully
     protected from both individual and group disadvantage under the core direct and
     indirect discrimination provisions of the EA 2010 – both on grounds of the protected
     characteristic of gender reassignment and on grounds of the sex with which they
     identify, insofar as they are perceived as being of that sex or experience the same
     group disadvantages as members of that sex.

130. The only context in which the decision in FWS has a direct impact in delineating
     the treatment of trans people is in circumstances where the EA 2010 allows for men
     and women to be treated differently because there are good reasons for such
     differential treatment. In the case of single sex or sex-segregated services or
     facilities, that will be because it is a proportionate means of achieving one or more
     legitimate aims – usually to do with safety, dignity and/or privacy – to adopt a
     general policy of excluding all members of the opposite sex. Where such reasons
     apply, it would inherently undermine the grounds for having single sex or sex-
     segregated services in the first place to allow some members of the opposite sex to
     use such facilities because they identify as the sex in question: single sex and sex-
     segregated services are not provided as vehicle for gender expression but because,
     in certain circumstances, there are good reasons for excluding members of one or
     other (biological) sex from the services or facilities of the other.

131. Therefore, the effect of the decision in FWS is that, in those limited
     circumstances where sex matters, such that differential treatment of the sexes is
     justified, trans people will have to be treated in the same way as other (non-trans)
     members of their (biological) sex and excluded from a service, facility or other
     provision made for members of the sex with which they identify. Duty bearers will,
     however, be obliged to do all that they (reasonably) can to make alternative
     provision for trans people where necessary.

132. This does not involve any breach of the rights of trans people because any
     interference will, by definition, be justified by the overriding grounds which justify
     the provision of single sex or sex-segregated services or facilities in the first place.
     It certainly does not involve ‘removing’ any established rights previously enjoyed
     by trans people because there never was any established legal ‘right’ for trans
     people generally to use single sex facilities or services provided for members of the
     sex with which they identify.

133. What the Supreme Court’s decision in FWS does, therefore, is to provide
     coherence and clarity where previously there was confusion and uncertainty, and to
     strike a fair and proportionate balance between sex-based rights and protections,
     and those of trans people.

Footnote

134. It has been drawn to my attention that a number of commentators on social
     media (which I avoid) have suggested that the implications of the Supreme Court’s
     decision in FWS are in some way unclear and/or that they do not take effect until
     the Equality and Human Rights Commission (‘EHRC’) publishes its final updated
     guidance taking account of that decision. Consequently, there seems to have been
     some encouragement to service providers, employers and other duty bearers to do
     nothing in response to the Supreme Court’s judgment and to await the EHRC’s
     guidance.

135. Duty bearers would be ill-advised to follow such encouragement. All duty
     bearers should understand the following points (which really ought not to need
     stating, and certainly ought to be obvious to any lawyer):

135.1. The Supreme Court’s decision in FWS as to the meaning of ‘sex’ in the
EA 2010 determines what the law is, and always has been.

135.2. It is the Supreme Court, and not the EHRC, that authoritatively
determines the law. The EHRC’s role is to provide guidance to assist people to
understand and comply with their rights and obligations under the EA 2010; its
role is not to determine the law or to interpret the EA 2010 (see Grosset v City
of York Council [2018] ICR 1492, CA, §42 per Sales LJ; §68 per Arden LJ).

135.3. Therefore, if a service provider, employer or other duty bearer is
currently following policies or practices that, in consequence of the Supreme
Court’s decision in FWS, are unlawful under the EA 2010, it will be no defence
to any claim against them to say that they are awaiting guidance from the
EHRC.

135.4. So, for example, if a service provider is currently operating a service or
facility for women based on a ‘trans inclusive’ definition of ‘woman’, they will
be exposing themselves to a serious risk of (i) claims for direct sex
discrimination by men who are excluded from that service; and/or (ii) claims
for indirect sex discrimination by women who are put at a particular
disadvantage by the undermining of their sex-based protections that the
admission of men who identify as women into the service is likely to represent.

BEN COOPER KC
July 2025"

Thank you! @CassOle

Thank you Intothetrees, you are an answer to my prayers request upthread for an expert opinion on what seems so duh! to non-legal people.
Thank you for your clear posts, you've explained it really well.

Of course, it's all foreign to me because I am in Ireland where 'they' got rid of the word 'sex' altogether from legislation and replaced it with 'gender' - they even managed to do that retrospectively to original equality legislation.

1977 Employment Equality Act
2.—For the purposes of this Act, discrimination shall be taken to occur in any of the following cases—
(a) where by reason of his sex a person is treated less favourably than a person of the other sex.

There are specific exceptions listed in the 1977 Act eg
17.2.(d) where either the nature of or the duties attached to a post justify on grounds of privacy or decency the employment of persons of a particular sex.

But in the 1998 Employment Equality Act
6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
6.2.(a) that one is a woman and the other is a man ('in this Act referred to as “the gender ground”')

The exceptions on the grounds of privacy or decency no longer appear in the 1998 Act.

So we don't even have the toe-hold that FWS had, we can't even seek to have a ruling on 'sex' meaning biological sex in our equality legislation, because it no longer appears there. And 'sex' is no longer a protected characteristic, only gender.

I feel - and that's all it is, a general feeling of unfairness - that there's something profoundly wrong with retrospectively saying that legislation that was clearly about men and women as understood at the time, is now about something else, and I'd love some wonderful Senior Counsel [=KC] to come flying in on a fire-breathing dragon to champion the rights of women, as defined by biology, in Irish law. Flaming sword and shining suit of armour optional

No worries. Thanks for contributing on this thread too. I enjoy reading everyone’s thoughts and opinions 👍

We’re having that problem here in N Ireland. Our Equality Commission claims that the UK SC ruling may not apply here because of post-Brexit treaties and is seeking clarification from the High Court.

Michael Foran has definitely said that Peggie's case engages with the Workplace Regulations 1992. He said on a blog:

"Dr Upton has been using the female-only changing rooms for some time now and Sandie Peggie is bringing a claim that this has resulted in unlawful harassment and discrimination in breach of the Workplace (Health, Safety, and Welfare) Regulation 1992 which state that changing facilities will not be suitable “unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety."
https://knowingius.org/p/mixed-sex-changing-rooms-as-direct

He also mentions the Regs in this Times Radio interview:

He did a long video on his substack with Q&As on the legal background of the Peggie case but it is members only (behind a paywall).

https://knowingius.org/

Perhaps you were think of this This Isn't Working podcast, it's the one where de Grunwald debriefs on the annual Stonewall conference that she (and Maya!) attended. The whole podcast was remarkable, but this stood out to me:

s

Edit: ooops it seems time link didn't work.

Yes. That’s the one!

It was really interesting how persistent, unbending but gentle they were in their campaigning.

Ah, ok, I haven't been following the Peggie case closely and what I found didn't mention the Workplace Regs, I will have a read/listen of Michael Foran's pieces.

If I remember right, the link between Sandie Peggie's case and the Workplace regulations is that the lawful provision of a single- or separate- sex service requires it to be a reasonable means to achieve a legitimate aim. Compliance with another act or regulation is de facto just such a legitimate aim.

In other words, you don't have to reach very far to justify why you can exclude men from women's changing facilities under the EA2010. Saying that you're doing so in order to meet the requirement of the Workplace Regulations is enough to meet the requirements stipulated in the EA2010.

Yes that sounds like the right argument.