The Equality and Human Rights Commission has issued interim guidance following the Supreme Court’s decision in For Women Scotland v The Scottish Ministers.
The highest court in the UK clarified that ‘sex’ means biological sex under the Equality Act 2010 (the Act), which affects the workplace, services provided to the public including hospitals, shops, leisure facilities, and schools.
Under the Act:
- A ‘woman’ is a biological woman or girl (a person born female)
- A ‘man’ is a biological man or boy (a person born male)
If an individual identifies as Trans, their sex does not change for the purpose of the Act even if the individual has a Gender Recognition Certificate (GRC). Therefore a Trans woman remains a biological man and vice versa for the purpose of the legislation.
For employers, it is compulsory to provide sufficient single-sex toilets as well as sufficient single-sex changing and washing facilities where these facilities are needed, in the workplace.
It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.
The guidance states that 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.
- 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
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, April 2025
