17 April 2025
On 16 April 2025, the Supreme Court heard the case For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent).
The case came to fruition after questions arose from the definition of the term “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 and associated statutory guidance. In 2020, For Women Scotland Ltd challenged the legislation and the surrounding guidance.
Fast forward to the present day, the UK Supreme Court has unanimously ruled that under the Equality Act 2010, the legal definition of a woman is based on the biological sex of the individual at birth.
Our Advisory Service has already received queries relating to this ruling, and the consequence it will have on gender pay gap reporting.
When it comes to gender pay gap reporting, the regulations do not define between a man and a woman. The guidance for employers states:
“It is important for you to be sensitive to how an employee identifies their gender. The gender pay gap regulations do not define the terms ‘men’ and ‘women’.
You should not single out employees and question them about their gender. To reduce the risk of this, try to use information employees have already provided, such as in HR or payroll records.
If this information is unavailable or unreliable, find a way to allow employees to confirm or update their gender. For example, invite them to check their recorded gender and update it if needed.
If an employee does not self-identify as either gender, you can exclude them from your calculations.”
The policy team will keep an eye on the advancements of this case, and if it has any knock on impacts into payroll processing, we will update you accordingly.
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