Charities acting in good faith, on proper legal advice, with documented board process, are not obviously in breach of anything. The legal debate about what For Women Scotland means for women’s charities is live, not settled — and reacting hastily to a campaign letter may create the very risks the letter claims to warn of. A trustee board’s primary task under pressure is not to find the right answer this week; it is to ensure the process by which an answer is reached is sound, documented, informed by advice, and protective of the charity and its beneficiaries.
This briefing is for trustee boards operating women’s services who need to understand the landscape before they respond to correspondence, review their objects, or consider restructuring. It is orientation, not a full action guide — the detailed board action sequence, response scripts, and escalation architecture sit in the paid charities Consulting pack, and for good reason: a defensible position has to be adapted to the specific objects, practice, and risk profile of the charity in front of you.
The legal frame
Four bodies of law sit behind every governance question of this kind.
The charity exception. The Equality Act contains a provision written specifically for charities — section 193, which you will see cited in campaign correspondence. It lets a charity restrict its benefits to people sharing a protected characteristic, either where the restriction is a proportionate means of achieving a legitimate aim, or where it exists to prevent or make up for a disadvantage tied to that characteristic. This is the strongest defensive structure available to a single-sex charity that wants to maintain trans-inclusive practice.
Three things about it matter. It is permissive, not mandatory — nothing in the Act requires a charity to use it, and nothing in For Women Scotland compels a charity to exclude trans women. It is not a shield against everything: a charity relying on it can still face a claim for treating someone worse because they are trans, or for harassing them. And it protects what you actually do, not what you say you do — a charity relying on the exception has to make sure its real activity meets the conditions, and document that it does.
CC9 — campaigning and political activity. The Charity Commission’s published guidance on campaigning and political activity sets the regulator-level framework. Campaigning must further the charity’s charitable purposes; it must not be the continuing and sole activity of the charity; a charity cannot have a political purpose; and campaigning must be legitimate, reasonable, and proportionate, conducted with respect and without inflammatory rhetoric. CC9 is regulator guidance, not equality law — it is cited via the Commission’s published page, not in the equality catalogue.
The public benefit test. Under the Charities Act 2011, every charity must exist for public benefit. The test has a definitional element — the purposes must be of benefit to the public or a sufficient section of it — and a “public” element: the people who can benefit must not be unreasonably restricted. Where a charity’s activity in practice harms a section of the public, for example through inflammatory rhetoric directed at a community sharing a protected characteristic, that factual harm engages the public benefit test. The charity does not stop being a charity just because some of its activities cause harm, but the trustees may be in breach of their duty to act for public benefit.
The EHRC Services Code 2026. The EHRC Code of Practice for Services, Public Functions and Associations (ehrc-code-spa-2026), in force from 5 August 2026, governs single-sex and separate-sex service provision under the Equality Act. Chapter 13 sets the proportionality framework: mixed provision is the starting point, single- or separate-sex provision is a justified exception, and the burden rests on the provider to demonstrate proportionate means and legitimate aim. The Code fully incorporates For Women Scotland: sex, woman, and man mean biological sex for Equality Act purposes, while trans people retain protection under the gender reassignment characteristic. Critically, the Code confirms that exclusion of trans people from a single-sex service is never mandatory, and it is very unlikely to be proportionate to leave a trans person with no service they can use.
For Women Scotland. The Supreme Court held in For Women Scotland Ltd v The Scottish Ministers (fws-uksc-2025) that “sex” in the Equality Act means biological sex — for two specific purposes: the rules on single-sex services, and the equality duty that applies to public bodies. That is what the Court was asked to decide, and it is worth being precise about what it therefore did not decide. It did not decide what “women” means in your charity’s own governing document. It did not rewrite charity objects. It did not amend the Gender Recognition Act 2004. It did not compel any charity to use the charity exception, to exclude trans women, or to amend its objects. The decision is real and load-bearing for single-sex service provision. It is also narrower than campaign correspondence often claims.
The board’s governance duties
A trustee board facing external pressure has four governance duties that matter here.
First, the duty to act within the charity’s objects. The board’s duty is to the charity’s purposes and its beneficiaries, not to a third-party campaign group. A campaign letter does not of itself create a legal duty to act. Before anything else, the board should read the actual objects clause — line by line — and identify whether the beneficiary class is defined by sex alone, by function (for example, “those affected by gender-based violence”), or by a broader equality purpose. Many trustees do not know the precise wording of their own objects.
Second, the duty of care and prudent decision-making. A board that takes legal advice and acts on it in good faith, documenting its reasoning, is acting within the “reasonable trustee” standard. Campaign letters often raise the spectre of trustees being held personally liable, and that is the single most common pressure point they are designed to exploit. It is worth understanding why it rarely bites: personal liability attaches only where the underlying act was unlawful in the first place. If the charity’s position is itself defensible, there is nothing for it to attach to. Trustee-indemnity insurance is the appropriate protection for the residual worry — check the cover is current before the board meeting.
Third, the duty of process discipline. Any change to a long-standing inclusive policy engages consultation, equality impact assessment, and transition duties. A change adopted under external pressure without those procedural steps is itself reviewable — by the courts on judicial-review grounds for public-function charities, and by beneficiaries on legitimate-expectation grounds. The board that holds position and documents why is in a stronger position than the board that changes quietly under pressure and finds the pressure expands rather than recedes.
Fourth, the duty of collective decision-making. The board as a whole is the decision-maker. Individual trustees venting frustrations publicly — whatever their view — creates governance and reputational exposure for the charity. One trustee does not speak for the board on this.
The strategic options
A board facing pressure has three broad options.
The first is to hold position: maintain the current service, document the trans-inclusive reading of the objects, work through the proportionality analysis for each sex-based operational element, and engage the regulator constructively. This is the reversible, legally robust posture. If pressure mounts and restructuring becomes genuinely necessary later, the charity can do it from a stronger evidence base. Holding position is not passivity — it is a considered governance decision, minuted, with the reasoning and the legal advice recorded.
The second is to restructure — amend the objects, change the name, remove sex from public-facing materials. This is sometimes called “sex-neutralisation.” For most single-characteristic women’s charities, it is the wrong defence. It surrenders the s.193 charity exception — the strongest legal protection available — and replaces it with a bare proportionality defence that is materially harder to sustain. It concedes the critique it claims to defend against: a charity that removes women from its objects to avoid challenge signals that trans inclusion and a women-specific mission are incompatible, which is the exact proposition the trans-inclusive sector has spent years disputing. It depends on Charity Commission consent that is not guaranteed — the Commission examines object changes driven by shifts in the legal environment carefully, not as a rubber stamp. And it is largely irreversible: a charity that restructures now and finds in 18 months that the landscape has clarified has changed its structure in response to a transient threat.
There is a narrow cohort for whom broadening scope may genuinely make sense — charities whose primary purpose is not sex-specific and whose women’s work sits among broader services. But that decision should turn on the charity’s actual mission, not on the surface area for hostile litigation. The right question for trustees is not “should we sex-neutralise to reduce risk?” It is “is our sex-specific mission still our mission?” If yes, the defensive posture is to defend it.
The third is to wait passively for the regulator to speak. This is not a strategy. The Charity Commission has not issued post-FWS charity-specific guidance and may not do so soon. A board that has minuted a holding position, taken advice, and documented its process is in a materially stronger position when guidance does arrive than one that has done nothing. As the waiting for clarity resource sets out, passive waiting is not a governance posture.
The three mistakes that make a charity’s position indefensible
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Restructuring under pressure without advice. Amending objects reactively, under external campaign pressure, without member or stakeholder consultation, is itself reviewable and may attract regulator criticism. The highest-risk single action a charity can take right now is immediate retrospective exclusion of long-standing trans service users — it potentially creates a fresh discrimination or harassment claim from the excluded person, will be poorly received by donors and staff, and concedes the campaign framing without the board having tested it.
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Screening people at intake. Asking service users for their birth sex, or whether they hold a Gender Recognition Certificate, sounds like a way to reduce risk. It does the opposite, on three fronts at once. That information is special-category data under UK data-protection law, so collecting it needs a lawful basis you probably have not established. Passing on the fact that someone holds a certificate, where you learned it in an official capacity, is a criminal offence under the Gender Recognition Act. And asking at all engages the right to a private life. Charities that bring in screening under pressure routinely create the data-protection exposure the campaign correspondence never mentions.
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Having no documented reasoning. As the defensible decision-making explainer sets out, undocumented reasoning is functionally indistinguishable from no reasoning once it is challenged. A board that reviewed its position once and never again is exposed; a board that has a standing review item at every meeting, minuted, is demonstrably discharging its duty. The board playbook for challenged policies sets out the broader governance method.
In a nutshell
If your board reads one section before the meeting, read this one:
- Nothing has changed overnight, and nothing forces your hand. The Supreme Court settled what “sex” means for single-sex services and the public-sector duty. It did not touch what “women” means in your governing document, and it does not require any charity to exclude anyone.
- You have the strongest protection in the Act — do not give it away. The charity exception exists precisely for charities like yours. Removing “women” from your objects to look less like a target surrenders it, and buys a weaker defence in exchange.
- A campaign letter is not a legal duty. Your duty runs to your charity’s purposes and its beneficiaries. Read your actual objects clause, line by line, before you do anything else — most trustees have never read theirs closely.
- Personal liability is the pressure point, and it is mostly bluff. It only bites where the underlying act was unlawful. If your position is defensible, there is nothing for it to attach to. Check your indemnity cover and move on.
- Do not start screening people. It is the intuitive response and it is the wrong one — it creates criminal, data-protection and privacy exposure the letters never mention.
- Holding position is a decision, not a delay. Minute it, record the reasoning and the advice, and put a review date on it. A board that holds and documents is in a stronger place than one that changes quietly and finds the pressure grows.
The single question to put to the board is not “how do we reduce our risk?” but “is our sex-specific mission still our mission?” If it is, the defensive move is to defend it — properly, on the record.
Take this further
The reading the Supreme Court definition of sex resource sets out what For Women Scotland decided and, just as importantly, what it did not decide. The board playbook for challenged policies walks through the governance response when a charity’s position comes under external pressure.
The Toolkit App’s Proportionality Check runs the four-limb test on the charity’s s.193 analysis, and Scenario Stress Test walks the board through the escalation scenarios — a pre-action letter, a regulator enquiry, a funder withdrawal, a coordinated campaign — so the board knows who makes the first call and who signs the first letter in each case.
For a charity facing a live letter or preparing for one, the paid charities Consulting pack provides a tailored governance analysis, a board action sequence adapted to your objects and practice, response correspondence templates cleared for your solicitor, and a trustee briefing session. See Consulting.