Article by Angela Renwick – Associate Just Employment Law
As has been widely reported, the UK Supreme Court recently provided clarification on the legal definition of “woman”. The Supreme Court determined that, under the Equality Act 2010 (the Act), ‘sex’ means an individual’s biological sex and, therefore, even if an individual has a Gender Recognition Certificate, their sex will remain their biological sex.
This judgment has created uncertainty in many areas, with one key area of uncertainty being in relation to toilets and changing areas.
Due to the uncertainty surrounding single-sex facilities, the Equality and Human Rights Commission (EHRC) has published interim guidance, with further guidance to follow. This interim guidance, insofar as it applies to workplaces, details the following:
- That employers must provide suitable single-sex toilets as well single-sex changing areas or washing facilities (where necessary).
- Trans women (deemed by the judgment to be biological men) should not be permitted to use women’s facilities and trans men (deemed by the judgment to be biological women) should not be permitted to use men’s facilities. This is to ensure that facilities remain as single-sex.
- The guidance does highlight that in some circumstances, trans women (biological men) will not be permitted to use the men’s facilities and vice versa. Such circumstances would be where there is a reasonable objection. An example of this could be if the gender reassignment process has made a trans woman (biological man) have a feminine appearance, as if this individual wished to use male-only facilities a reasonable objection may be made by a man.
- However, trans people must never be put in a position where there are no facilities for them to use as this would amount to discrimination in relation to gender reassignment.
The EHRC plans to provide a draft Code of Practice to the UK Government by the end of June 2025, and they intend to undertake a public consultation in May for a period of two weeks to understand further practical implications of the judgment.
Employers with policies or practices which differ from the approach recommended by the EHRC interim guidance may wish to revisit their policy and put interim changes in place, pending the more detailed EHRC guidance.