EHRC Guidance Following Supreme Court Judgment

As widely reported, the UK Supreme Court recently clarified the legal definition of “woman” under the Equality Act 2010 (the Act). The Court held that “sex” refers to an individual’s biological sex, meaning that, even with a Gender Recognition Certificate, a person’s legal sex remains their biological sex.

Key Implications for Single-Sex Facilities

This judgment has created significant uncertainty around the use of toilets and changing areas. In response, the Equality and Human Rights Commission (EHRC) has issued interim guidance, with more detailed advice forthcoming. For workplaces, the guidance states:

• Provision of Facilities – Employers must provide suitable single-sex toilets and, where necessary, single-sex changing areas or washing facilities.
• Use of Women’s and Men’s Facilities – Trans women (legally deemed biological men) should not use women’s facilities, and trans men (biological women) should not use men’s facilities, to preserve the single-sex nature of each facility.
• Reasonable Objections – In some cases, a trans woman (biological man) might be barred from men’s facilities, and vice versa, if a reasonable objection arises (for example, due to appearance). However, trans individuals must never be left without any available facilities, as this would amount to discrimination on grounds of gender reassignment.

Next Steps: Draft Code of Practice and Public Consultation

The EHRC plans to deliver a draft Code of Practice to the UK Government by the end of June 2025. A public consultation is scheduled for May 2025 (lasting two weeks) to gather insights on the practical implications of the Supreme Court’s judgment.

Employer Recommendations

Employers whose policies or practices differ from the EHRC’s interim guidance should review and, if necessary, update their policies. Implementing interim changes now will help ensure compliance ahead of the more comprehensive guidance.