The Equality Act 2010 protects people under two separate characteristics: sex and gender reassignment. I think that decision created confusion that was always going to lead somewhere like the For Women Scotland case, and I want to think through why, and respond to a really thoughtful message I received after my video on Instagram that adds important historical context.
Why does the Equality Act have two separate protections?
When I look back at the Equality Act, I think having both sex and gender reassignment as distinct protected characteristics was a mistake, or at least, it planted a confusion that has taken years to fully flower. Sex protected people on the basis of the sex they were assigned at birth. Gender reassignment separately protected people who were undergoing, had undergone, or were proposing to undergo a process of reassigning their gender. Two overlapping categories, two sets of questions about who exactly falls within each one, and a gap between them that campaign groups have spent years trying to widen.
That gap is exactly what drove the For Women Scotland case. The central question was not abstract: who is actually protected under the category of sex? Is it all women? Or just cisgender women? The Supreme Court, in its 2025 ruling, concluded that for the purposes of the Equality Act, sex means biological sex, meaning a trans woman with a Gender Recognition Certificate does not fall within the definition of woman under the sex characteristic. She remains protected under gender reassignment, but not under sex.
I have written about that ruling and its implications in detail elsewhere. Here I want to focus on something the ruling itself cannot answer: whether the architecture of the Act was always going to produce this result, and what a thoughtful reading of the legal history suggests.
What the legal history actually tells us
Someone who watched the Instagram video sent me a message I found genuinely useful, and I want to engage with it properly because it deserves more than a quick reply.
They laid out the timeline carefully. Corbett v Corbett in 1970 established how sex was defined in law in England and Wales. The Sex Discrimination Act 1975 gave that definition statutory teeth. The Workplace (Health, Safety and Welfare) Regulations 1992 clarified practical matters like toilets and changing areas. Then, in 2002, the European Court of Human Rights handed down Christine Goodwin v United Kingdom, which found that the UK's failure to legally recognise trans people's acquired gender violated the European Convention on Human Rights. The Gender Recognition Act 2004 followed, making Gender Recognition Certificates available. Civil partnerships came the same year. Same-sex marriage arrived in 2013.
The point they draw from this timeline is worth taking seriously. There was a six-year gap between the Gender Recognition Act and the Equality Act. Sex was already defined in law when the Equality Act was drafted. Section 9(1) of the Gender Recognition Act states that a person's acquired gender becomes their sex for the purposes of that Act and all subsequent law, with defined exceptions. The person who wrote to me argues that gender reassignment in the Equality Act was therefore designed as a bridging protection: full cover for those who had not yet obtained a GRC, and a supplementary protection, for example, if an employer discovered someone's history and discriminated on that basis, for those who had, since they were by then already covered under sex.
That is a coherent reading. And I think it is probably close to what Parliament intended. The drafters of the Equality Act were trying to be comprehensive, not contradictory. They were working in a legal landscape where the GRA had already said that a GRC holder's acquired gender was their sex, and they wanted to make sure people in the process of transition, before any GRC, or without ever wanting one, were also protected.
So where did the confusion come from?
The problem is that the Act never said any of this clearly. Section 9(1) of the Gender Recognition Act says acquired gender becomes sex for the purposes of all subsequent legislation unless that legislation specifically says otherwise. The Equality Act does not specifically say otherwise, but it also does not say that GRC holders are women for the purposes of the sex characteristic. It is silent on the relationship between the two Acts. That silence is what the Supreme Court stepped into.
The Court found that the GRA's section 9(1) does not apply when interpreting the Equality Act. Their reasoning was that allowing a trans woman with a GRC to be a woman under the sex characteristic would make the gender reassignment characteristic redundant for that person, why would she need protection under gender reassignment if she was fully protected under sex? That logic has been criticised by many legal commentators, who argue that the redundancy concern is not a good reason to exclude trans women from the sex characteristic entirely. But that is the ruling as it stands.
My own view is that the original mistake was leaving the relationship between the two Acts unstated. Parliament should have been explicit: either sex in the Equality Act means sex including acquired gender under the GRA, or it does not. The silence created a question that lawyers and campaign groups were always going to fight over, and that fight has now cost trans people real protection.
Does the gender reassignment characteristic still protect trans people?
Yes, and this matters in practical terms. The Supreme Court was clear: trans people remain protected under the characteristic of gender reassignment. That means discrimination, harassment, and victimisation on the basis of being trans is still unlawful under the Equality Act. A trans woman can still bring an employment claim, a housing claim, a service claim. She cannot currently rely on the sex characteristic to do it, but she has a route.
What the person who wrote to me describes as a bridging protection may, after this ruling, have become the primary protection for many trans people, not a stepping stone to something fuller, but the main legal floor. That is a meaningful narrowing, even if it is not the erasure that some commentary has suggested.
The Equality and Human Rights Commission's guidance that followed the ruling is still in draft form. How services, employers, and public bodies apply the ruling in practice remains genuinely unsettled. The legal landscape is live.
What should have happened instead?
Looking at the timeline the reader laid out, I find myself thinking that the architects of the Equality Act had good intentions and an incomplete solution. They knew trans people needed protection. They knew the GRA had created a legal category of acquired gender. They added gender reassignment as a characteristic and left the relationship between it and sex for someone else to sort out later. That someone else turned out to be a Supreme Court in a politically charged moment, which is not the right place for Parliament's intentions to be clarified.
If the Act had said plainly that, for the purposes of the sex characteristic, a person with a GRC is to be treated as the sex of their acquired gender, the For Women Scotland case would have had no legal traction. The ambiguity was the entry point. And while I think the Supreme Court's interpretation is contestable, many legal scholars do, the route to fixing it now is Parliament, not litigation. The GRA needs reform, and the Equality Act needs to be explicit about what it means.
Trans people should not have to live in the gap between two pieces of legislation that were never quite made to speak to each other. That is not fairness, but a drafting failure that has had real human consequences.
If there is a topic that you would like me to cover, just let Sammy know.
Dr Helen Webberley is a Gender Specialist, Medical Educator, and advocate. She is the founder of GenderGP and works full-time in advocacy, education, and public engagement around gender diversity.