In For Women Scotland v The Scottish Ministers, the Supreme Court held that references to ‘sex’ in the Equality Act 2010 pertained to biological sex. In doing so, it affirmed the default common law position, first explicitly stated in Corbett v Corbett and later upheld in Bellinger v Bellinger, that sex means biological sex unless legislation otherwise dictates. 

The Gender Recognition Act 2004 (GRA) provides both a mechanism for a person to change their legally recognised sex and a set of provisions to limit the extent of that change. Alongside express limitations preserving the biological sex default in areas such as parenthood, succession, peerages, and sport, s.9(3) preserves that default in relation to any enactment or subordinate legislation where there has been provision made to that effect. 

In FWS, the Supreme Court held that the default of biological sex will supersede the GRA where the “terms, context and purpose” of the enactment show that a biological meaning of sex is intended; where there is a “clear incompatibility” between the other enactment and a “certificated sex” reading, or because the provisions of the other enactment “are rendered incoherent or unworkable” by a “certificated sex” reading.

Since then, there have been several first-instance decisions which have grappled with what this means for the provision of single-sex services and the operation of domestic human rights law. Unless an identifiable human rights obligation requires otherwise, most legal provision of single-sex spaces will either be covered by the Equality Act 2010 (EqA) or other legislation to which the FWS test applies. 

Applying For Women Scotland v The Scottish Ministers

Thus, for example, the Prisons and Young Offenders Institutions (Scotland) Rules 2011 state at Rule 126(1) that ‘Female prisoners must not share the same accommodation as male prisoners.’ Without a s.3 HRA interpretation, this can only be a reference to either biological sex or certificated sex. Following FWS these rules, properly interpreted, reference biological sex. Accommodation based on gender identity, genital surgery, or any other consideration is not permitted under these Rules. The only circumstance in which an alternative approach can be taken is if the Human Rights Act requires a reinterpretation and the conditions for using s.3 are satisfied. And where a biological sex reading is a fundamental feature of the legislation in question, as the Supreme Court held for the EqA, the only recourse in human rights terms, should a violation be established, is a Declaration of Incompatibility. 

Since FWS, courts and tribunals considering human rights arguments in the context of single-sex spaces have come to different conclusions on the scope of the Article 8 right to gender recognition. 

In Haynes v English Blackball Pool Federation, the Canterbury County Court was faced with an argument that it violate Article 8 ECHR to interpret the EqA as permitting sporting bodies to operate the female category based on biological sex. In response, HHJ Parker concluded at [122] that ‘it is inconceivable that the Supreme Court would have accepted that the EA 2010 as interpreted by it was incompatible with the ECHR’. 

In Peggie v Fife Health Board, HHJ Kemp concluded that in the context of a female-only changing rooms, two competing Convention rights were engaged: on the one hand, the Article 8 rights of female users to privacy from the opposite sex while in a state of intimate undress; and, on the other, the Article 8 rights of transgender people to have their gender identity affirmed. HHJ Kemp includes within the latter right a presumptive entitlement to access single sex changing rooms based on gender identity. He therefore concluded that resolving these competing rights claims requires a balancing exercise which includes factors such as how well the trans person ‘passes’, what medical intervention they have had, how they dress, the views of other staff, and whether there are alternative facilities available [952]. 

In contrast, in Hutchison v Darlington NHS Trust, HHJ Sweeney concluded at [379], [439]-[442] that, while the Article 8 rights of female users of a single-sex changing room would be interfered with, excluding a transgender woman (recognised as legally and biologically male for the purposes of the EqA) from the female-only changing room would not amount to an unlawful interference with Article 8. The Tribunal concluded that any interference arising from maintaining a single-sex policy would be proportionate and lawful in pursuit of the legitimate aim of protecting the Article 8 rights of female users. However, failure to provide suitable alternative facilities for transgender people could also amount to an unlawful interference with Article 8. 

Most recently, the Scottish Government is facing a judicial review challenging its policy of permitting some male prisoners to be housed in the female prison estate. Human rights arguments are being advanced on both sides. 

The Scope of Convention Rights in Domestic Law

Domestic courts are under an obligation to keep pace with the case law of the European Convention on Human Rights: ‘no more, but certainly no less’ (R (Ullah) v Special Adjudicator at [20]). This principle has been interpreted as restricting the ability of domestic courts to develop human rights law beyond what has been recognised at Strasburg: ‘no less, but certainly no more’ (Al-Skeini v Secretary of State for Defence at [106]).

In Elan-Cane v Secretary of State for the Home Department the Supreme Court notes that, in cases concerning the scope of the Article 8 right to gender recognition, the first question is whether Article 8 imposes a positive obligation on the United Kingdom to provide what the claimant seeks [31]. In that case, the claim was for a legal entitlement to an X marker in place of a sex marker on passports. 

In implementing positive obligations, States enjoy a margin of appreciation. In Elan-Cane the UKSC, discussing the right to gender recognition, noted that:

“Where a particularly important facet of an individual’s existence or identity was at stake, the margin allowed to the state would be restricted. Where, however, there was no consensus within the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raised sensitive moral or ethical issues, the margin would be wider. There would also usually be a wide margin if the state was required to strike a balance between competing private and public interests or Convention rights.” [35]

The Supreme Court also emphasised that the margin of appreciation is of particular significance in relation to positive obligations because it may require contracting states to modify their laws and practices in order to advance social policies which they may not wholly support, and without any democratic mandate or accountability [55]. The Court concluded that:

“Courts, including the European court, are expert in adjudication. They do not, on the other hand, possess the capacity, the resources, or the democratic credentials to be well-suited to social policy-making. When adjudication by the European court requires it to consider questions of social policy, it accordingly finds guidance in a consensus on the part of the contracting states, and is cautious before embarking on such policy-making in the absence of a consensus” [58]. 

Given the lack of consensus among member states on “X” passport markers, the Court held it was therefore constitutionally inappropriate for a domestic court to seek to develop the law in this manner:

“it is open to domestic courts to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law, on the basis of the principles established in that law. They should not, however, go further than they can be confident that the European court would go.” [63]

In R (AB) v Secretary of State for Justice at [57], the Supreme Court was similarly clear that domestic courts cannot expand the scope of human rights unless they are fully confident that such an expansion would be upheld by the ECtHR, as mandated by the Convention, and therefore outside of the Margin of Appreciation:

“it is not the function of our domestic courts to establish new principles of Convention law. But that is not to say that they are unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. In situations which have not yet come before the European court, they can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law.” [59]

The two most important questions to answer when considering the role of Convention rights in cases involving gender recognition and single-sex spaces are therefore (1) whether the ECtHR has recognised a right to access single-sex spaces as part of the right to gender recognition, and (2) if not, whether a domestic court can be fully confident that the ECtHR would impose a positive obligation on Member States to modify its law to prohibit single-sex spaces based on biological sex and require single-sex spaces based on some other matter related to gender reassignment (be it gender identity, certificated sex, appearance, medical intervention or otherwise). 

The Scope of the Right to Gender Recognition

In Goodwin v United Kingdom, the ECtHR concluded at [90] that ‘the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable’. It therefore found a violation of Article 8 arising from the failure of the UK to provide for a system of gender recognition. 

However, the Court also noted that, while there is no longer any discretion over whether or not legal gender recognition is provided for, ‘the appropriate means of achieving recognition of the right’ to gender recognition does fall within the margin of appreciation [93]. In R (McConnell) v Registrar General for England and Wales, in 2020, the Court of Appeal noted at [47] that this caveat ‘was and remains important’. 

On one view, the ECtHR setting itself against ‘the unsatisfactory … intermediate zone’ means that it is a breach of Article 8 for there to be any circumstances where a transgender person is treated as male for some legal purposes and female for other legal purposes. Evidently, if that was correct, the ECtHR would not have concluded that the GRA remedied the Article 8 breach identified in Goodwin, given the various exceptions contained within the Act.

Since the Court in Grant did conclude that the GRA brought the UK into compliance with the Convention, we can conclude that the unsatisfactory nature of the ‘intermediate zone’ identified in Goodwin did not imply an obligation on Member States to introduce a system of gender recognition which never treated a transgender person in accordance with their biological sex. Rather, we can conclude that it is a clear breach of Article 8 to have no system of gender recognition at all, but that further questions about how precisely to implement such a system and how to balance gender recognition rights against the rights of others falls within the margin of appreciation and are for Member States to decide.

Nowhere has it been suggested that Article 8 requires a member state to make provision for a complete change in legally recognised sex for all purposes with no exceptions. Indeed, the ECtHR noted in Parry that the margin of appreciation may be wider in the context of gender recognition than in other areas. 

This position has been recently reiterated in T.H., where the ECtHR noted that that there is a narrow margin of appreciation in the area of ‘the right to gender identity and personal development’, but also that: 

“where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, or where the States are required to strike a balance between competing private and public interests or Convention rights, the margin of appreciation afforded to them in implementing their positive obligations under Article 8 will usually be wide.”

This again supports the view that there is very little discretion for member states to decide whether to implement some framework of gender recognition. However, this also reinforces the fact that in determining the domestic effect of gender recognition, particularly where it involves striking a balance between competing private and public interests or the rights of others, states will be afforded a wider margin of appreciation.

There has been no case law at the ECtHR level arguing that the right to gender recognition protected under Article 8 places a positive obligation on member states to confer a legal entitlement to use single-sex spaces of one’s choosing. To develop domestic law in this way, the following would have to happen:

1. A court or tribunal would have to be satisfied that the Article 8 right to gender recognition includes a right to use single-sex spaces on a self-identification or certificated sex basis.
2. A court or tribunal would then have to be satisfied that it would be a disproportionate interference with this right to operate single-sex spaces on a biological sex basis.
3. Given there is no case law supporting 1 and 2, a court or tribunal would have to be ‘confident’ that the ECtHR would develop the case law on Art. 8 to include both 1 and 2.
4. The Tribunal would then have to consider the domestic legislation in question (in this case the Equality Act 2010) and identify the specific provisions which need to be read down.
5. Finally, a court or tribunal would have to be satisfied that doing so would not conflict with a ‘fundamental feature’ of the legislation in question.

Given that an entitlement to access single-sex spaces such as female-only changing rooms, shower facilities, rape crisis centres, and prisons will necessarily engage the rights of others, it is highly likely to fall within the margin of appreciation for member states. If this is right, it is not open to domestic courts to hold that a prohibition on accessing single-sex spaces is a violation of the ECHR, as doing so would involve developing the Article 8 jurisprudence beyond that which has been recognised by the European Court. 

Even if it were possible for domestic courts to do so, domestic human rights law precludes interpreting legislation in this way if it would conflict with a fundamental feature of the statute.  This is of paramount importance in the context of single-sex spaces because the central question before the court in FWS was whether a biological interpretation of sex was fundamental to the EqA. The question before the Supreme Court was therefore not whether disapplying the effect of a GRC is compatible with Article 8 but rather when disapplication is envisaged within the terms of the GRA itself. The Supreme Court concluded that a biological interpretation of sex was fundamental to the EqA, by necessarily implication thereby precluding the use of s.3 HRA to circumvent that interpretation. 

Similarly, even if one was satisfied that it is open to domestic courts to develop Article 8 in this way, any argument that other rules requiring or permitting single-sex spaces or facilities must demonstrate that such an interpretation would not conflict with a fundamental feature of the enactment requiring or permitting these spaces and facilities. There are therefore significant barriers to the use of s.3 HRA to reinterpret provisions relating to single-sex spaces away from the default of biological sex. 

Michael Foran, Associate Professor of Law, University of Oxford. Further exploration of the themes addressed in this post can be found in Michael Foran, Sex, Gender Identity and the Law (CUP 2026). 

I am grateful to Paul Scott and Leah Trueblood for helpful comments and suggestions.

(Suggested citation: M. Foran, ‘Human Rights, Gender Recognition and Single-Sex Spaces’, U.K. Const. L. Blog (11th February 2026) (available at https://ukconstitutionallaw.org/))