On 6 June 2025, the Good Law Project initiated judicial review proceedings against the Equality and Human Rights Commission (EHRC). The review challenged the EHRC’S controversial interim guidance on the use of single-sex facilities in public and work spaces, following the ruling of the Supreme Court in For Women Scotland v Scottish Ministers.
What did the interim guidance say?
The initial guidance, published on 25 April 2025 stated 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 goes on to state “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”
This guidance caused concern particularly amongst the trans community, with reports that trans people were challenged regarding the bathrooms they were using, “outed” in their workplaces, and under significant stress.
Seemingly following the substantial criticism of the guidance, and submission of the judicial review challenge by the Good Law Project, the EHRC amended this guidance on 24 June 2025, to state instead “In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. Where changing facilities are required under the regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities such as separate lockable rooms.”
Why is the Good Law Project challenging this guidance?
The judicial review, to which the Good Law Project is a party, argues that the guidance provided by the EHRC is incorrect in law, contravening the Equality Act 2010, the Workplace (Health, Safety and Welfare) Regulations 1992, and the Gender Recognition Act 2004, by encouraging employers to adopt blanket policies which exclude trans employees from using the facilities applicable to their lived gender. The claim argues that the EHRC’s interpretation of the For Women Scotland decision is incorrect, and that the definition of “woman” and “sex” as referring to biological sex under the Equality Act 2010, does not extend to workplace regulations regarding bathroom and changing facilities, which, they argue, should accommodate the lived gender.
The Good Law Project has vehemently criticised the EHRC’s original guidance, describing it as “irresponsible” and a source of immeasurable distress for trans employees, citing one case where an employee, a trans woman, was told she was to use the men’s facilities at her workplace, and attempted to take her own life the same day.
The current position
This case highlights the current legal and societal tensions surrounding trans rights in the wake of the For Women Scotland decision. This decision has caused much concern both to employers and to affected employees, with the EHRC’s changing guidance causing more and more uncertainty.
The High Court is set to consider the case in full in November. We are therefore likely to receive further updates on this challenge later this year, with further case law inevitable as the situation progresses. For now, however, whilst the position remains uncertain, the updated EHRC guidance should still be followed.
Advice to employers
Employers are advised by the EHRC to implement the following rules to their workplace (pending legal advice based on individual workplace circumstances):
- Trans individuals are not be permitted to use the facilities of their acquired (rather than biological) gender, with the reasoning given that 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, trans individuals are also not permitted to use the facilities of their acquired gender.
- Where single-sex facilities are available to 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 including cubicles) which are intended for the use of one person at a time, they can be used by either women or men.
The full implications of the For Women Scotland decision remain uncertain, however, it is clear that, whatever facilities are available, there have to be sufficient facilities available to trans persons.
Further practical implications for employers, as provided by the EHRC, are as follows:
- The law has not changed regarding general occupational requirements. An employer is permitted, in limited circumstances, to require that a role is filled by an individual of a certain sex (for example, a worker at a women’s shelter). It remains the case that trans individuals can be excluded from these roles, but the employer must be able to justify the requirement in order to avoid it being unlawful discrimination.
- The equal pay implications remain problematic. As the equal pay rules require comparisons between men and women, a trans woman cannot compare herself with a cis man for these purposes (likewise a trans man could not compare himself with a cis woman). Whilst this remains a live issue, the individual does have the option of bringing a direct sex discrimination claim about pay instead based on the perception that she is female.
- Likewise, there is confusion regarding gender pay gap reporting. It seems that, under the Equality Act (which uses the words “male” and “female”) reporting will need to be carried out using the biological definition of these terms, however, there is no definition of the terms ‘men’ and ‘women’ in the gender pay gap regulations, and it is for individuals to decide within which category they fall into (or if they do not fall into either). The current government guidance recognises that this is a sensitive issue. Guidance suggests that employers use the information the individual has provided to them (for the purposes of payroll/HR). Individuals can, however, be excluded from the calculations if they do not self-identify as either male or female.
- A pregnant trans man has all the same pregnancy and maternity rights as a cis woman, and cannot be discriminated against due to pregnancy or maternity leave.
In the current climate, where the matter of trans rights remains an issue evoking strong opinions from both sides of the debate, the biggest challenge now facing employers will be rising tensions in the workplace. A recent example of this is the current controversy involving Bristol City Council, where Green councillors staged a mass-walkout from the council chambers upon hearing members of the public air gender-critical views.
In the workplace, it is important that employers acknowledge that, whilst the rights of trans employees are protected under the Equality Act, genuinely held philosophical beliefs (including gender critical beliefs) are also protected provided that the beliefs are manifested appropriately. Employers would therefore be misguided to implement policies and procedures which protect the rights of trans employees at the expense of employees with gender critical beliefs being required to silence their views, or vice versa.
The current climate is certainly complex, and all disputes will need to be handled sensitively. A well-drafted equality, diversity and inclusion policy will be essential as the above measures are followed. The For Women Scotland ruling and the associated discourse will undoubtedly be difficult reading for the trans community in particular, and measures should be taken to reach out to workforces and ensure that employees are supported.
