Following the decision of the UK Supreme Court in For Women Scotland Limited v the Scottish Ministers [2025] UKSC 16 that the legal definition of a "woman" under the Equality Act 2010 is based on biological sex, employers have more nuances to consider when determining how to grapple with changes in the diversity, equity and inclusion landscape.
From a policy perspective, employers should note that the UK Supreme Court judgment is a lengthy and nuanced judgment that requires careful consideration in the context of the specific UK legislation that was the subject of the challenge, and the wider UK legislative regime.
It does not directly impact the legal position in Ireland. Ireland has a different legislative regime to the United Kingdom, both in the context of equality legislation and gender recognition legislation.
Nearly 20 years ago, the High Court declared that Irish legislation at the time on the registration and issue of birth certificates was incompatible with the European Convention on Human Rights. This case was taken by Dr Lydia Foy following a decision taken by the Registrar General's refusal to issue a new birth certificate in her new gender. In the final paragraph of that judgment, the High Court concluded that:
"Everyone as a member of society has the right to human dignity, and with individual personalities, has the right to develop his being as he sees fit; subject only to the most minimal of State interference being essential for the convergence of the common good. Together with human freedom, a person, subject to the acquired rights of others, should be free to shape his personality in the way best suited to his person and to his life."
Arising out of this, Ireland took steps to ensure that transgender people in Ireland had the ability to have their preferred gender legally recognised by the State. This right is now set out in the Gender Recognition Act 2015.
Separately, and unlike the equality regime in the United Kingdom, the legal position in Ireland has for many years been that if a transgender person considers they have been discriminated against due to their transgender status, the appropriate ground under which they can bring an equality claim is the "gender" ground. There is no separate protected characteristic under the Employment Equality Acts 1998-2015 or Equal Status Acts 2000 to 2018 that deals specifically with protections for transgender people.
This was first expressly acknowledged by the Equality Tribunal in 2011, and has been repeatedly reaffirmed by the Equality Tribunal and subsequently by the Workplace Relations Commission. When the matter has fallen to be considered, decisions of the Court of Justice of the European Union have been cited to support the approach under Irish law.
While the Irish legal position is sometimes influenced by judgments from the United Kingdom, to date there does not appear to be significant appetite to alter the position to align with the approach taken by the UK Supreme Court in its recent decision.
The UK Supreme Court concluded in its judgment that any other interpretation would render the UK Equality Act 2010 "incoherent and impracticable to operate". It should be noted that this is a statement that applies strictly to the UK regime. Without assessing that statement in the context of the UK specific regime, it is worth noting from an Irish perspective that these types of issues have not manifested to any material degree over the last 14 years in Ireland.
The UK Equality and Human Rights Commission (“EHRC”) has published interim guidance on the practical implications of the UK Supreme Court judgment, noting that it has implications for many organisations including workplaces, sporting bodies, services that are open to the public, schools and associations. The interim guidance focusses on access to facilities (such as toilets and changing areas) and indicates that the EHRC intends to provide more detailed updated guidance, which is likely to include addressing rules about when competitive sports can be single-sex.
Employers reflecting on how they might consider this development in the context of their ongoing DEI strategy should note that this case highlights that local laws and norms can differ significantly even in jurisdictions that otherwise have similar legal regimes.
A "one size fits all" approach to DEI may give rise to legal risk, as well as employee relations risk, and this should be considered before finalising any key decisions in this space.
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Matheson's Employment, Pensions and Benefits Group is available to guide you through the complexities of navigating the new trends and legal developments in this area.
For more information please contact Employment, Pensions and Benefits senior associate, Rachel Barry, or your usual contact at Matheson.