Following confusion for employers and businesses after the Supreme Court ruled that in the Equality Act 2010 ‘sex’ means biological sex, the EHRC has clarified that 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.

It is not compulsory for services open to the public to have single sex facilities such as toilets. But these can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act.

The EHRC said it could be indirect sex discrimination against women if the only provision is mixed-sex.

The interim update was issued to fill a gap until the EHRC publishes detailed guidance in a revised Code of Practice for approval by ministers in June.

In a statement, the EHRC said: ‘Our updated guidance will provide further clarity. While this work is ongoing, this update is intended to highlight the main consequences of the judgment. Employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.’

The facilities available for trans people to use will depend on the circumstances and may need to be looked at on a ‘case by case’ basis according to the EHRC.

The EHRC update emphasised that trans people should not be put in a position where there are no facilities for them to use. This may mean providing mixed-sex facilities in addition to single-sex facilities.

Regarding trans people, in workplaces and services that are open to the public EHRC said:

• 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 and must be open to all users of the opposite sex;
• in some circumstances the law also allows trans women not to be permitted to use the men’s facilities, and trans men not to be permitted to use the women’s facilities;
• however, 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; and
• 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.

Rob McKellar, legal services director at Peninsula, said: ‘Any clarity on how the law works is always welcome. The main takeaway here for employers is that although this ruling has confirmed that in the Equality Act 2010 the words “woman” and “sex” refer to biological sex, transgender people are still protected under the Act.

‘The ruling does not change the fact that employers should strive to provide an inclusive workplace that embraces and welcomes all individuals, regardless of any protected characteristics, and failure to do so could result in a discrimination claim at tribunal.’

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