On 16 April 2025, in For Women Scotland Ltd v The Scottish Ministers, the UK Supreme Court confirmed that ‘sex’ under the Equality Act 2010 means biological sex. This ruling has significant implications for workplace policies, reinforcing the need to maintain separate male and female toilets, showers and changing facilities.
In this newsletter, we discuss the latest guidance, practical compliance steps, and how employers can sensitively balance their legal obligations with inclusivity.
The Supreme Court decision
The Court had to decide a very fundamental question: did the word ‘sex’ in the Equality Act mean biological sex only or did it include those whose legal sex had changed by virtue of the procedure in the Gender Recognition Act 2004? They decided emphatically that ‘sex’ meant biological sex only.
One of the ways this is important is that it affects single-sex spaces. This could be in the context of a group of people of one biological sex wishing to exclude people of the other biological sex. Crucially, for this newsletter, it affects the general duty on employers to provide single-sex spaces in the workplace.
New EHRC interim guidance
In April 2025, the Equality and Human Rights Commission (EHRC) reacted to the decision by publishing revised interim guidance.
This stresses that separate facilities for men and women must be genuinely single-sex. Specifically, it advises employers that transgender employees should not use facilities designated for the opposite biological sex.
To ensure transgender staff also have access to suitable facilities, the EHRC recommends offering single-occupancy, gender-neutral facilities (such as individual lockable toilets or changing rooms) that employees can use privately.
The final form of guidance is currently out for public consultation and will be put in place later this year.
Balancing rights sensitively
The legal point that was at issue (the meaning of the word ‘sex’) is now clear so, faced with a discrimination claim, employers do not have a defence that they are waiting for the final form of EHRC guidance to be published. But, while there may be a need to act now, this is a delicate issue and feelings about it can run high so firms are advised to handle any changes sensitively.
Facilities such as toilets and changing and washing facilities based on biological sex (for example, female) have clear, justifiable reasons (such as preserving privacy or ensuring comfort), which means that those of the other biological sex, including transgender employees (who may be biologically male but identify as women), can be prevented from using them.
And the duty to provide single-sex facilities means that businesses shouldn’t react to the Supreme Court judgment by converting all existing men’s and women’s facilities to being ‘gender-neutral’. This would disadvantage women in particular, potentially leading to indirect sex discrimination.
But transgender individuals are still protected under equality law because gender reassignment is one of the protected characteristics in the Equality Act. The Supreme Court decision does not give employers added protection against transgender-related discrimination or harassment claims. But, while there now a risk of sex discrimination claims if employers don’t follow the interim EHRC guidance, there is still no clear resolution on dealing with the risk of gender reassignment claims.
Practical compliance steps
While all the practical implications are still somewhat unclear, firms should:
- Audit facilities. Identify existing single-sex facilities and also any gender-neutral options for transgender persons.
- Assess risks. Consider the safety, privacy, and comfort for all staff, including those with religious or disability-related requirements.
- Provide a gender-neutral option. This could be converting or adding single-occupancy, lockable spaces clearly marked as available for all to use.
- Avoid reacting by reducing women-only facilities (to avoid possible indirect discrimination).
- Ensure universal accessibility so that every employee has access to suitable facilities.
- Update policies if necessary. Revise signage and policy documents and ensure managers understand and communicate these policies in a sensitive manner.
Facilities for visitors and clients
Businesses should apply similar principles to spaces used by visitors or clients. Public-facing single-sex spaces must remain genuinely single-sex. Trans visitors should also be accommodated appropriately, such as by providing clearly marked, private, gender-neutral cubicles.
How 3CS can help
This change highlights the need to manage single-sex spaces. At 3CS, our employment solicitors provide practical advice on compliance, from policy reviews to staff training. Contact us today to see how we can support your organisation.
