Since the Supreme Court settled the meaning of “sex” in the Equality Act 2010, a run of tribunal and court decisions has begun to show how that ruling is being applied to real policies on facilities, uniforms and workplace conduct. The short answer for organisations is consistent across the set, and it favours neither “always include” nor “always exclude”: the decisions that hold up are those where an employer or service provider reached a documented, proportionate, case-by-case decision — and the decisions that fail are those that applied a blanket rule, or changed one, without that reasoning on the record. This briefing surveys the key cases neutrally and draws out five themes that recur regardless of which way a case went.
Two points of framing before the cases. First, most of the decisions below are first-instance employment tribunal judgments: they are persuasive and illustrative, not binding on other tribunals, and several are subject to potential appeal. Good Law Project v EHRC is a High Court decision and carries more weight, but it too is subject to potential appeal. Second, none of these cases turns on a statutory Code of Practice. They interpret the Equality Act 2010 as read in For Women Scotland. A statutory Code — such as the EHRC’s updated statutory Code of Practice on services, public functions and associations — is guidance that explains the Act’s duties; it is not itself the source of the obligation. Read these cases as evidence of how the Act is being applied, not as rulings on any Code.
The anchor: For Women Scotland (2025)
For Women Scotland Ltd v The Scottish Ministers ([2025] UKSC 16, handed down 16 April 2025) is the decision every other case on this list builds on. The Supreme Court held unanimously that “sex” in the Equality Act 2010 means biological sex, not legal sex as modified by a Gender Recognition Certificate. Three consequences follow: the single-sex exceptions in Schedule 3, Part 7 operate by reference to biological sex; the Public Sector Equality Duty, so far as it concerns sex, relates to biological sex; and a GRC does not change a person’s sex for the Act’s sex-based provisions.
Just as important is what the judgment did not do. Gender reassignment protection under section 7 is unaffected — it remains a protected characteristic in its own right. The Court did not make the single-sex exception mandatory or automatic, and it did not require any organisation to exclude trans people from any service. It settled what “sex” means; it left the proportionate, case-by-case application of the exceptions exactly where the Act had always put it.
Judicial review of the guidance: Good Law Project v EHRC (2026)
Good Law Project Ltd & Others v EHRC ([2026] EWHC 279 (Admin), February 2026) was a judicial review of the EHRC’s interim guidance issued after For Women Scotland. The High Court’s reasoning is useful to organisations for three points. Single-sex provision under Schedule 3 does not exclude or prohibit additional, non-single-sex provision — the Act permits a service to offer both. An employer’s duty under regulation 20 of the Workplace (Health, Safety and Welfare) Regulations 1992 to provide single-sex facilities operates concurrently with its Equality Act obligations, including the gender-reassignment non-discrimination duty; the two are not alternatives. And under the Schedule 3, paragraph 28 proportionality test, an arrangement that requires a trans person to use birth-sex-only facilities, or leaves them with no usable facility, faces a demanding justification burden. The decision is subject to potential appeal, so the position may develop.
How employment tribunals are applying it
The employment tribunal decisions since For Women Scotland cut both ways, and reporting them straight — including the ones that went against a trans-inclusive policy — is the point.
LS v NHS England (ET Leeds, Case No 1802318/2024, May 2026) is the best-evidenced of the set and the first reported tribunal decision to apply For Women Scotland and Good Law Project together to an employer’s trans-inclusive facilities policy. Indirect sex discrimination was upheld: the tribunal found the employer had failed to consult women’s and faith networks, failed to consider its regulation 20 obligations, and failed to consider the lesser alternative of directing trans staff to gender-neutral facilities — with fewer than five trans women across all offices against a workforce of roughly 16,000 to 19,500. A harassment allegation was upheld by effect but dismissed as to purpose. The outcome went against the policy, and the reasons were about process and proportionality rather than the aim of inclusion itself.
Peggie v Fife Health Board & Dr B Upton (Case No. 4104864/2024, Scottish Employment Tribunal, December 2025) tested an NHS workplace trans-inclusion policy against an employee’s gender-critical belief. The published judgment is the authority for exactly which claims succeeded and which were dismissed; the durable governance point is that arrangements of this kind are scrutinised in detail on their facts.
Kelly v Leonardo UK Limited (Case No. 8001497/2024, Scottish Employment Tribunal, Edinburgh, October 2025) concerned a toilet-access policy. Claims of harassment related to sex and of direct and indirect sex discrimination were all dismissed, the tribunal finding that the employer had conducted a proper balancing exercise and provided reasonable alternatives. Here the outcome favoured the policy — again on the strength of a documented balancing exercise.
Hutchison & Others v County Durham and Darlington NHS Foundation Trust (Case No. 2501192/2024 & Others, England and Wales Employment Tribunal, January 2026) was brought by eight female nurses over changing-room arrangements. Harassment succeeded on some grounds, and indirect sex discrimination was upheld — the tribunal finding the “Transition in the Workplace” policy had a disproportionate impact on women. Some harassment claims, and the victimisation claims, were dismissed on the facts. The outcome went against the policy.
Toshack v GEO Amey Ltd (Case No. 8001392/2025, Scottish Employment Tribunal, February 2026) concerned a prison custody officer dismissed after refusing to use transgender prisoners’ preferred pronouns or record their affirmed sex, contrary to policy. The tribunal confirmed his gender-critical belief was protected under section 10 of the Equality Act, but dismissed all his claims: his dismissal was caused by his refusal to comply with a lawful policy — a manifestation separable from the belief — not by the belief itself, and was a proportionate response in a high-risk custodial setting. The indirect-discrimination claim failed for want of evidenced group disadvantage. The outcome favoured the policy.
Five cross-cutting themes
Across cases decided both for and against the policy under challenge, five themes recur.
- Additional non-discriminatory provision reduces risk. Where an organisation offers a further, non-single-sex option, it is on stronger ground. Good Law Project confirms the Act permits both; LS v NHS England treated a gender-neutral alternative as a lesser measure the employer should have considered.
- Process matters. Consultation, timeliness and documented reasoning repeatedly decide cases. LS v NHS England turned in large part on consultation failures; Hutchison on the handling of concerns; and the scrutiny in Peggie underlines the same point.
- Proportionality is decisive. From For Women Scotland through Good Law Project’s paragraph 28 analysis to Kelly’s balancing exercise, whether a restriction is a proportionate means of achieving a legitimate aim is the question that determines the result.
- Case-by-case, not blanket. The circumstances are decisive. A blanket rule applied without individualised reasoning sits on weaker ground than a documented, specific decision — a point common to For Women Scotland and Good Law Project.
- No hierarchy of protected characteristics. The duty is to balance, not to rank. For Women Scotland requires the PSED to weigh sex alongside gender reassignment; Toshack shows a gender-critical belief protected under section 10 sitting alongside gender-reassignment protection under section 7. No characteristic automatically overrides another.
What this means for organisations
The consistent lesson is not that inclusion won or lost, but that reasoning won. In every case that held up, the organisation could point to a documented, proportionate decision reached on the specific facts, weighing the needs of everyone affected. In the cases that failed, the gap was in process — a rule applied or changed without consultation, without regard to lesser alternatives, or without a recorded proportionality assessment. Organisations that treat these decisions as a prompt to build case-by-case, evidenced, on-the-record decision-making — rather than to adopt a single blanket position in either direction — are the ones best placed as the case law continues to develop.