EHRC guidance on single-sex facilities after Supreme Court ruling: What employers must do

The Equality and Human Rights Commission (EHRC) has issued some interim guidance highlighting the main consequences of the recent ruling by the Supreme court in For Women Scotland v The Scottish Ministers that ‘sex’ means ‘biological sex’ under the Equality Act 2010. The EHRC is responsible for enforcing equality laws and providing guidance to policymakers and businesses, and following the Supreme Court decision it has been under pressure to produce some guidance on the implications of the ruling.

Their guidance is brief but re-iterates the finding that a ‘woman’ is a biological woman, someone born female, and a ‘man’ is a biological man, someone born male.  A person who identifies as trans or who has a Gender Recognition Certificate does not change sex for the purposes of the Equality Act.

The impact of this is far reaching and affects employers and services that are open to the public such as leisure facilities and hotels among others.  The focus of this EHRC guidance is the use of facilities such as toilets along with washing and changing facilities where these are needed.

Workplaces are required to provide sufficient single-sex facilities.  The guidance states that employers should not allow trans women (biological men) to use women’s facilities and vice versa for trans men (biological women) because this would mean that they are no longer providing single-sex facilities.  However, trans people must not be left in a situation where they have no facilities to use.  If possible, mixed-sex facilities should be provided in addition to the single-sex facilities.  You can also provide facilities that are available for all if they are in “lockable rooms (not cubicles)” and for use by only one person at a time.   

Full guidance is being prepared by the EHRC in the form of a Code of Practice which should provide practical steps for employers to take. This is expected to be available before the summer recess of parliament so we should have more clarity before the end of July.  A two-week consultation is expected to launch in May to help shape the guidance. The EHRC are also reviewing how the judgment might impact other advice and guidance so we may see more updates trickle through from them in the meantime.    

Employer to-do list:

• Check whether your facilities (toilets, washing and changing) comply with the EHRC guidance.
• Review your policies to ensure compliance with the law, in particular any polices which allow individuals to use facilities with which they feel most comfortable, as such policies are unlawful.
• Reach out for assistance from us if you are unsure.  Some decisions may still need to be made on a case-by-case basis where unisex loos cannot be provided, as trans employees should not be placed in a situation where no facilities are available for them to use.
• Look out for further updates from us on this topic as it is ever evolving.