EHRC issues interim guidance on Supreme Court judgment in For Women Scotland case

As we reported last month, the Supreme Court ruled on the meaning of ‘woman’, ‘man’ and ‘sex’, for the purposes of the Equality Act 2010.  The judgment had potentially far-reaching implications for workplaces and single sex spaces and raised a number of practical questions to be answered. For many employers, the questions relate to everyday use of changing and toilet facilities.

As anticipated, the Equality and Human Rights Commission (“the EHRC”) has now issued interim guidance hoping to provide some clarification on the practical implications for workplaces.  Following on from this, we understand that the EHRC’s Code of Practice will also be updated, and further guidance is awaited. In short, the position remains far from clear.

In the meantime, the interim guidance states that the effect of the ruling is that, for the purposes of the Equality Act:

• A ‘woman’ is a biological woman (a person born female).
• A ‘man’ is a biological man (a person born male).
• If somebody identifies as trans (or as a different gender to the one into which they were born), their sex does not change for the purposes of the Equality Act, regardless of whether they have a Gender Recognition Certificate. 

This means that, for the purposes of the Equality Act, a trans man is a biological woman and a trans woman is a biological man.

The guidance provides 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.
• 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 (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) 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.
• 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.

We understand that a revised Code of Practice should be available for ministerial review later in the summer. There is also likely to be a brief public consultation before this to help the EHRC to consider the practical implications of the judgment and how to deal with this within the updated guidance. It remains to be seen how established case law will now be viewed and to what extent the position pre-April 2025 will be rewritten. This is a sensitive and often controversial area of the law, and many more questions have now arisen.