- within Law Department Performance, Insolvency/Bankruptcy/Re-Structuring and Consumer Protection topic(s)
- with readers working within the Retail & Leisure industries
It has been reported today that the long-awaited EHRC guidance on single-sex spaces will not apply to workplaces, leaving employers facing significant uncertainty. Following the Supreme Court's ruling in For Women Scotland v Scottish Ministers that “sex” under the Equality Act 2010 means biological sex at birth, many employers had anticipated clear direction on how to manage sensitive issues such as access to toilets, changing rooms, and other single-sex facilities. That clarity will not be forthcoming, at least not soon.
What this means for employers
The existing legal framework remains in place. The Workplace (Health, Safety and Welfare) Regulations 1992 continue to govern workplace facilities, requiring separate toilets for men and women unless lockable, single-occupancy rooms are provided. Recent employment tribunal decisions have confirmed that the FWS decision does not convert the 1992 Regulations into a requirement to police access to toilets or changing facilities strictly by biological sex at birth. In practical terms, this means that employers cannot simply implement blanket exclusions, nor should they assume they must.
A case-by-case approach is essential
In the absence of specific workplace guidance, employers will need to assess each situation on its own facts. What is proportionate and lawful will depend on:
- workplace architecture and existing facilities: can lockable, single-occupancy rooms be provided or redesignated? Are there practical alternatives that maintain dignity for all employees?
- the specific circumstances: has there been a complaint? Is the trans employee's status known in the workplace, and would a change in arrangements effectively “out” them?
- proportionality: any decision must balance the rights of all employees concerned , and represent the least discriminatory means of achieving a legitimate aim.
Employers should document their decision-making processes and the rationale behind any approach adopted.
Reaching out to your trans community
Perhaps most importantly, employers should not wait for concerns or complaints to arise. Proactive engagement with trans employees is critical. Employers should reach out to their trans community to explain what is happening, acknowledge the uncertainty created by the current legal landscape, and reassure them of ongoing support. Recent employment tribunal cases underscore that how an employer communicates, and how promptly it acts when concerns are raised, can be decisive in determining liability. And remember that trans people remain protected from discrimination and harassment on the basis of gender reassignment. Any employer response must respect that protection while also addressing the legitimate concerns of other employees.
Proportionality
Employers are left to deal with the competing pressures of legal obligations that remain largely unchanged, a high-profile Supreme Court ruling, and no practical guidance on how to reconcile the two in the workplace. Until that changes, they must tread carefully, act proportionately, and keep the lines of communication open with all affected employees.
Subscribing to our global employment blog
From cross‑border perspectives (e.g., U.S./UK comparisons) to EU‑wide analyses and focused UK briefings, our global employment blog brings the breadth of our network to your inbox. Each post is clearly titled by jurisdiction so you can spot what's most relevant at a glance. Subscribe today to stay ahead of legislative change, with strategic insights curated by our global employment team.
Related capabilities
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]