EHRC publishes interim update - re the use of single-sex spaces

On 16 April 2025, in the case of For Women Scotland Ltd v The Scottish Ministers, the Supreme Court clarified that the terms “woman” and “sex” under the Equality Act 2010 mean “biological woman” and “biological sex”, not gender or sex acquired or certificated through a Gender Recognition Certificate. Should you wish to read about the case and the implications for employers and other organisations, please take a look at our article, Supreme Court ruling – ‘Sex’ and The Equality Act 2010.

On 25 April 2025, the Equality and Human Rights Commission (EHRC) published a short interim update on the practical implications of the ruling, with the aim of providing some clarity. It states that employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary. 

The interim update recommends the following, in summary:

1. In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.
2. In workplaces and services that are open to the public:
   • “Trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities.”
   • “Where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use. Where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided.”
   • “Where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men.”

What does the interim update not address?

The EHRC update is silent on how to balance competing rights. Organisations need to plan and carefully consider the implications, particularly in light of the fact that “gender reassignment” is a protected characteristic under the Equality Act. In addition to their rights under section 7 of the Equality Act, as highlighted in our previous article, transgender people are also able to pursue discrimination, harassment and victimisation claims on the basis of associative and/or perceived sex or gender reassignment. 

Organisations will need to consider their facilities to ensure they are legally compliant. If organisations are unable to provide individual lockable facilities, they are encouraged to carefully consider their approach before making any decisions or changes. We advise speaking with those directly affected by the ruling, and considering their comments and concerns when planning any changes to your policies and practices, as well as undertaking Equality Impact Assessments and consultation where appropriate.

Next steps

The EHRC have said that they are aiming to provide an updated Code of Practice on Services, Public Functions and Associations (the Code) to the Government by the end of June 2025 for ministerial approval. The EHRC have already conducted a consultation on updating the Code, and a further two-week consultation will be launched in mid-May 2025. No timeline has been given for updating its Employment Code of Practice in light of the judgement. 

The House of Lords was due to discuss NHS staff access to single-sex spaces on 1 May 2025 and we will report on further developments as and when they emerge. 

How can we help?

We are highly experienced in supporting employers to navigate complex and sensitive employee relations conversations involving complex gender identities, gender re-assignment and single-sex spaces. If you would like further information or support on any of the above, please contact our experts Courtney Janotta, Jodie Sinclair, Alastair Currie or Sarah Lamont.

We also advise service providers, education bodies and public authorities on the Equality Act 2010, including on the balancing of different interests, positive action, the Public Sector Duty and Equality Impact Assessment. If you would like further information or support on this please contact Virginia Cooper or Amy Tschobotko.