The recent Supreme Court ruling has clarified the definitions of "man," "woman," and "sex" in the context of the Equality Act 2010. The judges unanimously ruled that a woman is defined by biological sex. This decision has immediate implications for the workplace, particularly regarding the provision and use of single-sex facilities such as toilets and changing rooms.
The Equality and Human Rights Commission (EHRC) has issued an interim update outlining the practical implications of the judgment. The aim of the guidance is to help employers understand the immediate impact of the ruling, ahead of more comprehensive guidance expected later in the year.
Employers are now required to ensure that they provide adequate single-sex toilet facilities for all staff. Where changing and washing amenities are necessary, these too must be provided on a single-sex basis.
As a result of the Supreme Court’s ruling, transgender women (biological males) should not be permitted to use women’s facilities, and transgender men (biological females) should not use men’s facilities. Allowing this would mean the facilities can no longer be considered single-sex.
In workplaces where only shared facilities exist, employers must ensure that transgender individuals are not left without access to appropriate amenities. In such cases, employers should provide separate single-sex or mixed-sex facilities. Mixed-sex facilities must meet health and safety requirements - specifically, they must consist of fully enclosed, individual, lockable rooms.
The EHRC's interim update further clarifies that employers should not permit individuals to use facilities that correspond to their gender identity rather than their biological sex. However, this does not eliminate the risk of a discrimination claim from a transgender employee. Employers must therefore proceed with caution, as there is currently no legal protection from such claims and no definitive guidance on how to manage this risk while transitioning away from more inclusive arrangements.
The guidance recommends that employers consider introducing mixed-sex toilet, washing, or changing facilities. This may pose challenges, particularly for workplaces that currently lack such facilities or where the only available unisex option is a disabled toilet. The EHRC's interim update does not address how employers should deal with these limitations or how to manage situations where a transgender employee has not disclosed their status to colleagues. Forcing such an employee to use facilities aligned with their biological sex may inadvertently reveal their transgender status, potentially opening the employer to discrimination claims.
Health and safety law requires that men and women have access to separate toilet facilities. The only exemption is where each facility is a fully enclosed, lockable room, in which case mixed-sex provision is permissible.
Employers should now take practical steps to assess and adapt their workplace facilities. This includes auditing current provisions to determine whether new mixed-sex facilities are required. Simply redesignating existing single-sex toilets as unisex will not meet Health and Safety Executive (HSE) standards unless each toilet is in an individual lockable room. Employers should collaborate with landlords or building owners to ensure compliance with these requirements.
Failure to provide separate-sex facilities could lead to claims of indirect sex discrimination, particularly if the change disproportionately impacts women. It is important to note that a person with the protected characteristic of gender reassignment does not automatically have the right to use opposite-sex facilities - even if they possess a Gender Recognition Certificate. Employers that allow this risk creating an offensive or embarrassing environment for other staff, which could result in claims of harassment.
The EHRC will continue its work on both statutory and non-statutory guidance. An updated Code of Practice is expected by the end of June.
In the meantime, employers should consider reviewing and updating relevant workplace policies. It is also important to communicate the implications of the Supreme Court ruling to transgender employees, including that they may not use opposite-sex facilities based on gender identity alone.
If you require further guidance, please do not hesitate to contact the Quest HR Advice Line on 01455 852028.
