Last year the Supreme Court held in the much publicised For Women Scotland v Scottish Ministers case that "sex" in the Equality Act 2010 (EqA 2010) means biological sex (and not the sex stated on a Gender Recognition Certificate).
The Supreme Court emphasised that trans people remain covered by separate protections against discrimination under the EqA 2010 on the grounds of gender reassignment and/or perceived sex. However, the decision had wider ramifications for employers and service providers, who have generally made case by case decisions on sex and gender classification in relation to things like access to toilets and changing rooms.
Amidst ongoing discussions on the ruling, the Equality and Human Rights Commission (EHRC) published an interim update on 25 April 2025 which proved controversial and which was formally withdrawn from their website in October 2025. So what's the position now when it comes to providing single sex services?
The EHRC Code of Practice for Services
The revised Code of Practice for Services, Public Functions and Organisations (the Code) has now been approved by Parliament and will be coming into force on 5 August. The updates to the Code reflect legislative changes, case law and new guidance issued since it was first published in 2011. The Code applies to service providers, but as many employers are also service providers they will find the guidance in the Code useful.
Given the considerable time it has taken for the EHRC to update the Services Code it seems unlikely that it will update its Employment Code of Practice in the near future. Employers should therefore review the Code carefully when considering their policies and procedures on issues such as single-sex services and facilities.
The Code will need a commencement order to bring it into force. It does not impose strict legal obligations but can be used as evidence in claims brought under the EqA 2010 and compliance with the Code will be an important factor in considering whether conduct is lawful.
What does the Code say?
There is a section in the Code which deals with the provision of separate and single-sex services. It advises that, where possible, both single-sex and mixed-sex facilities should be provided. It gives the example of a shopping centre being renovated so that it provides separate-sex toilets as well as toilets in individual lockable rooms with handbasins which can be used by people of either sex.
It also provides another example of a community group opening a small advice centre which provides separate-sex toilets and extends the use of the accessible toilet with baby changing facility so that it can also be used as a mixed-sex toilet for anyone who does not wish to use the toilet for their sex. The Code notes that this is likely to be proportionate given the size and resources of the centre, and advises that the community group should monitor whether there is any negative impact on both trans and disabled people on an ongoing basis and, if so, to take appropriate action.
The Code notes that in the cases of services which are necessary for everybody, such as toilets, it is very unlikely to be proportionate to put a trans person in a position where there is no service that they are allowed to use. It also states that it is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service being provided.
Balancing conflicting rights
Since the Supreme Court's decision in the FWS case it is clear that, in relation to the protected characteristic of sex a trans woman will be considered to be male and a trans man will be considered to be female. However, the EqA 2010 protects the characteristic of gender reassignment separately.
As far as service providers are concerned there is an exemption contained in the EqA 2010 which means that it will not be sex discrimination to provide separate services based on sex if a joint service for both sexes would be less effective, and providing those services separately would be a proportionate means of achieving a legitimate aim. However, it is worth being aware that in relation to single-sex facilities trans people are likely to be disadvantaged by comparison to people who are not trans and there is a possible risk of gender reassignment discrimination claims. It will be up to the service provider to consider whether the disadvantage to trans people (and any other people who may be disadvantaged) outweighs the benefits of the legitimate aim.
And what are the implications for employers? Employers are subject to the Workplace (Health, Safety and Welfare) Regulations 1992 which impose a statutory obligation to provide suitable and sufficient sanitary conveniences for employees. Where facilities are used by both men and women, separate facilities must be provided for each sex, unless each convenience is in a separate room, the door of which is capable of being secured from the inside. Where facilities are in a lockable room (not cubicles) they can be used by either women or men.
This may sound straightforward but policing single sex facilities runs the risk of "outing" trans people who may otherwise have been presenting as, and living life as, their reassigned gender and using the facilities of their preferred or acquired sex. Also an exclusion from the toilets of their chosen gender may result in sex or gender reassignment harassment claims as it is likely to amount to unwanted conduct related to either gender reassignment or sex which has the effect of violating the individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
By contrast if single sex facilities are not enforced there's also the risk of biological women bringing harassment claims. However, this will be fact dependent and there is conflicting case law out there.
Conclusion
The Code advises that single-sex facilities should be offered to members of the public, alongside gender-neutral (or mixed sex) facilities. However, as discussed above, this will not be without risk.
Fostering an inclusive culture has never been more important, and it will be key to reinforce the message that discrimination and harassment will not be tolerated and that equality, diversity and inclusion are measures that will be proactively pursued and implemented.
Employers should ensure that there are clear communication channels and that employees know how to access support and guidance should they need it. It will also be important to deal with any concerns raised with sensitivity.
