In its judgment of 16 April 2025 in For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) ([2025] UKSC 16), the UK Supreme Court held that the term “sex” in the UK Equality Act refers to a person’s biological sex at birth, to the exclusion of the sex acquired through gender recognition. European law is addressed only in a very limited manner, although the lengthy 87-page judgment raises numerous questions.

In relation to EU law, one of these questions is whether EU non-discrimination law is based on a binary understanding of the concept of sex, and what role indirect sex discrimination could play for transsexual persons under the Supreme Court’s narrow understanding of sex. 

In 2012, Christa Tobler co-authored a report on the position of, among others, transsexual persons under EU non-discrimination law under the then existing case law of the European Court of Justice. For the European Equality Law Network, she also wrote two reports on indirect discrimination, in 2008 and in 2022.

Christa Tobler is Professor of European Law at the Institute for European Global Studies. Her research interests include the legal relations between Switzerland and the European Union as well as issues of equality before the law and discriminations.