The recent UK Supreme Court ruling in For Women Scotland Ltd v The Scottish Ministers, and the subsequent interim guidance from the Equality and Human Rights Commission (EHRC), have significant implications for organisations across the UK.
The EHRC, as the statutory regulator and enforcer of the Equality Act 2010, has clarified that the terms “man,” “woman,” and “sex” refer to biological sex. While organisations may hold differing views, disregarding this guidance poses serious legal risks, including potential enforcement actions and employment tribunal claims.
Understanding the EHRC’s interim update
The EHRC’s interim update, issued on 25 April 2025, provides clarity on the practical implications of the Supreme Court’s decision:
Definition of sex: Under the Equality Act 2010, “sex” is defined as biological sex.
Single-sex spaces: In workplaces and services open to the public, trans women (biological men) should not be permitted to use women’s facilities, and trans men (biological women) should not be permitted to use men’s facilities, to maintain the single-sex nature of these spaces.
Provision of facilities: Employers are required to provide sufficient single-sex toilets and, where necessary, single-sex changing and washing facilities. Where possible, mixed-sex facilities should be provided in addition to single-sex ones to accommodate all individuals.
Avoiding discrimination: Providing only mixed-sex facilities could constitute indirect sex discrimination against women.
These guidelines apply to various settings, including workplaces, public services, schools, sporting bodies, and associations.
The EHRC has confirmed that it is working at pace to update both its statutory and non-statutory guidance to reflect the Supreme Court’s judgment. The next step will be the completion of a revised Code of Practice, which the EHRC aims to submit to the UK Government by the end of June 2025 for ministerial approval. Once approved, the Code will be laid before Parliament. As statutory guidance, it will carry significant legal weight: courts and tribunals must take it into account when considering relevant cases. The EHRC has announced that a short public consultation will take place in mid-May to gather views on the practical implementation of the ruling, although the legal definitions established by the Supreme Court will not be revisited.
Legal risks of non-compliance
Ignoring the EHRC’s guidance and updates exposes organisations to several legal risks:
Enforcement actions: As the regulator, the EHRC has the authority to take enforcement action against organisations that fail to comply with the Equality Act.
Employment tribunals: Employees may bring claims of sex discrimination if they believe their rights under the Act have been violated.
Reputational damage: Non-compliance can lead to public scrutiny and damage an organisation’s reputation.
It’s crucial to understand that while the Equality Act continues to protect individuals from discrimination based on gender reassignment, these protections do not override the provisions related to single-sex spaces based on biological sex.
While some argue that the Equality and Human Rights Commission (EHRC)’s interim update lacks the force of law, it’s crucial to recognise the EHRC’s authoritative role as the statutory regulator and enforcer of the Equality Act 2010. Established under the Equality Act 2006, the EHRC possesses a suite of enforcement powers, including the ability to conduct investigations, issue unlawful act notices, and enter into legally binding agreements with organisations to ensure compliance with equality laws.
Courts and tribunals are mandated to consider the EHRC’s statutory codes of practice when adjudicating relevant cases, granting these codes significant legal weight. Even non-statutory guidance from the EHRC is influential, as it reflects the Commission’s interpretation of the law and its expectations for compliance.
Practical scenarios for employers
To align with the EHRC’s interim update on the Supreme Court Ruling, employers should consider the following scenarios:
Toilet facilities
Current Setup: If your workplace has gender-neutral bathrooms, assess whether this setup could indirectly discriminate against women.
Action: Ensure the provision of separate single-sex restrooms. If space allows, offer additional gender-neutral facilities to accommodate all employees.
Changing Rooms
Current Setup: Shared changing rooms may no longer be compliant.
Action: Designate separate changing areas for men and women. Where feasible, provide private, gender-neutral changing spaces.
Signage and communication
Current Setup: Ambiguous signage can lead to confusion.
Action: Clearly label facilities as “Men,” “Women,” or “Gender-Neutral.” Communicate these changes to all staff to ensure understanding and compliance.
Policy updates
Current Setup: Policies may reference “gender” without specifying biological sex.
Action: Review and update policies to reflect the legal definitions as clarified by the Supreme Court and EHRC.
Staff training
Current Setup: Employees may be unaware of the legal changes.
Action: Implement training sessions to educate staff on the new definitions and their implications in the workplace.
Ensuring compliance and inclusivity
While adhering to the EHRC’s guidance is legally necessary, organisations should strive to maintain an inclusive environment:
Alternative facilities: Where possible, provide gender-neutral facilities to accommodate trans individuals.
Support systems: Offer support and resources for trans employees to ensure they feel respected and valued.
Open dialogue: Encourage open communication to address concerns and foster understanding among all staff members.
Next steps
Policy review: Conduct a thorough review of all policies related to sex, gender, and facilities.
Facility audit: Assess current facilities to ensure compliance with the EHRC’s guidance.
Staff training: Implement training programs to educate employees on the legal definitions and their practical implications.
Legal consultation: Seek legal advice to navigate complex situations and ensure full compliance.
