The Supreme Court & Social Work Considering some implications of the recent Supreme Court ruling for social work practice.

EBSWA republishes this with thanks to EBSWA member Robin Carling who writes and talks about issues of gender identity in social work on Robin's Substack https://bit.ly/43KxFDS

Introduction

Following the Supreme Court ruling1 on the meaning of ‘sex’ in the Equality Act 20102, there has been significant public discussion and misunderstanding about its nature and limitations. For some, this is the first they have been aware of this matter, so they may assume the Supreme Court was redefining (or indeed, defining for the first time) the terms in the Equality Act. However, this is not the case: the Court was asked to clarify the terms of the Act as it was written, and to interpret how it was intended by Parliament.

The issue arose, in essence, from the coexistence of two competing interpretations of the Equality Act that have developed in recent years. This confusion partially originates in the Gender Recognition Act 2004, which predates the Equality Act by 6 years and introduced ambiguity regarding the concept of legal sex. This issue became more pronounced in recent years, when the concept of ‘gender identity’ gained rapid social and institutional prominence.

The Gender Recognition Act enabled individuals to obtain a Gender Recognition Certificate (GRC), granting them legal recognition as the opposite sex for most legal purposes. At the time, it was already acknowledged that biological sex could not be altered, so the GRC created a legal fiction – a formal recognition of a social role rather than a biological change. This is akin to adoption, where adoptive parents are recognised as legal parents despite no biological relationship to the child.

While the legal fiction created by the Gender Recognition Act was relevant, the Supreme Court case was not concerned solely with GRC holders. It instead addressed the broader interpretation of the Equality Act, in which some institutions had come to interpret references to ‘sex’ as including self-declared gender identity. This interpretation resulted in individuals being granted access to single-sex services, facilities, and opportunities on the basis of self-declared identities, rather than biological sex.

The Supreme Court unanimously rejected this interpretation, affirming that terms referring to ‘sex’ in the Equality Act refer to biological sex. This clarification aligns with the language of the Act, which uses the term ‘transexual’ throughout – a term consistent with the legal and cultural context at the time – and contains separate provisions for the protected characteristic of ‘gender reassignment’. It would have required a significant interpretive stretch to suggest the Act implicitly incorporated concepts of ‘gender identity’ that had not yet emerged in mainstream discourse.

Implications for Practice

The first and most obvious consequence of the ruling for social work relates to the provision of services. Same sex care, single-sex spaces, and other provisions must now be provided on the basis of biological sex. The Equality and Human Rights Commission (EHRC) has already laid out some of the implications of the ruling4 in respect of schools, including requirements for schools in England and Wales to provide single-sex toilets from age 8, and single-sex changing facilities from age 11. In Scotland, these must be available irrespective of age. Full guidance has not yet been published, but the overarching principle is clear: where a legal duty relating to sex exists, biological sex must take precedence over self-declared gender identity.

However, there are ramifications that are unlikely to be clarified in EHRC guidance. Of these, one implication is particularly significant: there is now a clear legal obligation to recognise biological sex, and no corresponding legal duty to treat individuals in accordance with self-declared gender identity. The protected characteristic of gender reassignment applies to individuals undergoing, having undergone, or proposing to undergo processes to present as the opposite sex, protecting them from discrimination on that basis. It does not confer a legal right to override biological sex classifications, nor to compel others to affirm self-declared gender identities.

Accordingly, social workers must now explicitly consider biological sex in their decision-making. While some individuals may seek to be treated in line with a self-declared gender identity, there is no legal obligation to do so. This introduces a significant ethical consideration in cases concerning children and young people expressing identities that differ from their biological sex: how should professionals respond?

Finding The Ethical Line

Although biological sex cannot be changed, a period of legal ambiguity has permitted people to be treated as the opposite sex in specific circumstances. Similarly to these legal fictions, it is possible in social settings to create social fictions – shared behaviours and acknowledgements that disregard other realities, such as biology or the law. In practice, endorsing a social fiction of self-declared gender identity is known as ‘social transition’.

Social fictions are common amongst children (e.g., a child dressing up as Spiderman or Elsa) and may be endorsed and encouraged by adults. They are also common in adult entertainment (e.g., suspending disbelief while watching a film or play). There are, however, limits to such social fictions. If a child is never told they are not Elsa, or if an actor is permanently treated as their on-stage persona, confusion and distress may follow. Similarly, in safeguarding contexts, endorsing a fiction that fails to prepare a child for reality may ultimately do harm.

In social work, this situation becomes tangible when the social fictions clash with other realities. For instance, if a child expressed a desire that presupposes a biological capacity they do not possess (e.g., pregnancy), or if a child seeks legal recognition of a self-declared gender identity (e.g., on passports) but finds that official documents reflect biological sex. When professionals affirm an identity without addressing the real-world constraints, they may unintentionally create greater distress when those constraints emerge.

Another prominent consideration is that of informed consent. Since the publication of the Cass Review5, it has been made clear that social transition is an active clinical intervention that should be taken with clinical oversight. The Children Act 1989 also details in section 1 the need to have regard for a child’s views “in the light of his age and understanding”6 – how can a young person give meaningful informed consent to social transition as an intervention, if the limitations of this have not been explored? And how can a professional be assured of the child’s understanding if they have not discussed the limitations with them?

At the same time, children whose identities are affirmed by peers and adults may reject professionals who seek to emphasise biological sex or make them aware of the limitations of their social fiction. As relationship-building is fundamental to effective social work7, professionals must consider whether, when, and how to introduce challenge. Among the myriad factors that inform these decisions are the strength of the existing relationship, the consistency of adult messaging, and the child’s developmental stage.

In many cases, direct challenges may not be appropriate. However, neutrality and curiosity can serve as an effective middle path. An ideal approach allows for gentle questioning, while avoiding the risks of either uncritical affirmation or harsh contradiction. Professionals can acknowledge a child’s feelings without affirming conclusions by using open-ended responses. For example:

“Thank you for sharing. I can see you’ve put a lot of thought into this; maybe we can explore it further together?” acknowledges a child’s feelings without affirming conclusions.

Conclusion

Hume’s formulation of the is-ought problem famously highlighted that facts alone do not determine ethical action. However, they do create the framework in which ethical decisions must be made. The Supreme Court ruling does not provide us with an immediate ethical guide itself, but it does affirm the relevance of biological sex and its relationship to sex-based duties, informing the development of best practice.

For social workers, this reinforces the need to prepare children for a world where legal, biological, and social realities intersect. While social fictions can support identity exploration, they must not become substitutes for preparing young people for adult life. Balancing empathy with clarity, and curiosity with professional responsibility, is not just important – it is now essential to ethical and effective practice.

References

1. For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16

2. Great Britain, Equality Act 2010, London: The National Archives, available online at: https://www.legislation.gov.uk/ukpga/2010/15/contents

3. Great Britian, Gender Recognition Act 2004, London: The National Archives, available online at: https://www.legislation.gov.uk/ukpga/2004/7/contents

4. EHCR (2025) An Interim Update on the Practical Implications of the UK Supreme Court Judgement, available online at: https://www.equalityhumanrights.com/media-centre/interim-update-practical-implications-uk-supreme-court-judgment

5. Cass, H. (2024) The Cass Review: Independent Review of Gender Identity Services for Children and Young People, available online at: https://cass.independent-review.uk/wp-content/uploads/2024/04/CassReview_Final.pdf

6. Great Britain, Children Act 1989, London: The National Archives, available online at: https://www.legislation.gov.uk/ukpga/1989/41/contents

7. Payne, M. (2021) Modern Social Work Theory, 5th Edition, London: Red Globe Press