Template email about positive action based on self-ID instead of sex

Subject: Request for urgent review of programme criteria

I am writing to express concern about the eligibility criteria for [programme name], which breach equality law in Britain, and to request that you amend them urgently to bring the programme into compliance. [Add evidence – for example: Your website says that the competition aims to encourage girls to study mathematics but then says that it is open to all “female-identifying students” in the UK in the specified school years.]

As you may be aware, the UK Supreme Court judgment in the case of For Women Scotland v Scottish Ministers, handed down on 16th April 2025, confirmed that “the words “sex”, “woman” and “man” in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man.” .

Your [material] declares an intention to treat the group [“self defined women”, “female identifying students”] more favourably than those who are not “self-defined women”. Your criteria relate to two groups:

• Group A: includes most females (who have not identified as something else) and males who identify as female.
• Group B: includes most males (who do not identify as female) and females who do not identify as female (for example they may identify as “trans men” or “non binary”).

These are what the Supreme Court referred to as “complex, heterogenous groupings” (at §172 and §239): they do not share a protected characteristic. 

Your selection criteria declare an intention to subject group B to less favourable treatment than group A. This amounts to:

• direct sex discrimination against men or boys, who are discriminated against on the basis of their sex
• direct gender-reassignment discrimination against women or girls who have or are associated with the protected characteristic of gender reassignment (who may identify as “trans men” or “non binary”). 

It does not matter that not all men are in the less favoured group, or that not all people with the protected characteristic of gender reassignment are. It is not a requirement in a direct-discrimination case that all members of a class sharing a protected characteristic be treated less favourably (see R (Coll) v Secretary of State for Justice [2017] 1 WLR 2093 t §30).

Direct discrimination based on a protected characteristic (other than age) cannot be justified. It requires a statutory exception in order to be lawful. 

Section 158 “positive action” provides an exception to the general prohibition on direct discrimination to enable people who share a particular protected characteristic to be treated more favourably than people who do not, in order to overcome disadvantages.

This statutory exception is not available for a programme targeting this heterogeneous group as they do not share a protected characteristic. This was the core finding of the For Women Scotland case (which related to positive action for securing gender balance on Scottish public boards). 

To be lawful provisions in favour of women must exclude those who are biologically male.

As a public authority, you are also bound by the public-sector equality duty at section 149. This requires due regard to the need to eliminate discrimination, harassment and victimisation, and advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. 

Core to the Supreme Court’s judgment was the finding that where positive action is undertaken to address disadvantage or under-representation faced by women this relates to biological females. As the judgment sets out at paragraph 241:

“In the case of both sets of provisions [positive action and PSED] the purpose of addressing the particular needs, disadvantages or participation levels of women as a group with the protected characteristic of sex, is undermined if women as a group includes trans women… (in other words, biological men…).”

This means that men or boys who identify as women or girls cannot be lawfully included in the category of people to benefit from positive action to meet the needs of women or girls. 

Setting eligibility criteria which do not match with the protected characteristics exposes [name of organisation] to the risk of legal action for unlawful discrimination [if it is a public body, add and for acting outside its statutory powers, procedural impropriety and irrational decision-making]. In relation to the similar policy of the Scottish Government (concerning positive action towards women on public boards) the Supreme Court ruled that the policy was irrational. 

I hope you find this information helpful, and await your speedy reply confirming that [name of organisation] has brought the entry criteria for the [programme or award] into compliance with UK law. This requires making it clear to all stakeholders that entry is open only to (biological) girls – that is, people born female.

I likewise request that you amend all publicity material to reflect the legal position, and get back in touch with anyone who has previously received publicity material about the programme to make clear that eligibility is based on being female, not identifying as female.