Proportionality and the interpretation of conflicting equality rights: lessons from For Women Scotland

Abstract The Supreme Court in For Women Scotland Ltd v The Scottish Ministers 2025 UKSC 16 held that ‘sex’ in the Equality Act 2010 means biological sex only, resolving through statutory interpretation a conflict between sex-based rights and trans recognition interests. This article critiques the Court’s refusal to engage in proportionality analysis when adjudicating conflicts between protected characteristics. Drawing on comparative jurisprudence, rights-balancing theory, and equality law scholarship, it argues that such conflicts require transparent proportionate balancing rather than categorical resolution through interpretative technique. The article proposes a structured, context-sensitive framework grounded in established proportionality doctrine that would enable principled adjudication whilst maintaining legal certainty for duty-bearers. It contends that binary interpretative choices, while providing surface clarity, present as textually determined what are in fact normative judgments about the relative weight of competing equality interests, thereby obscuring the evaluative reasoning inherent in rights adjudication and foreclosing more sophisticated responses to the graduated nature of equality conflicts.