27/05/2025

In April, the Supreme Court decided that references to “woman”, “man” and “sex” in the Equality Act 2010 mean “biological woman”, “biological man” and “biological sex”. Since then, employers across the country have been grappling with the practical implications of the judgment. We addressed the Supreme Court judgment and some resulting practical issues in our earlier e-alert, Supreme Court rules on legal definition of a woman and EHRC issues interim update.  So, what do we know in relation to toilet facilities at work, and what is still uncertain?

What does the law now say?

Health and safety guidance and legislation requires employers to provide a certain number of toilets per number of employees. The legislation, which is over 30 years old, does not refer to trans people. In order to be “suitable” under the legislation, the toilets must be either single sex facilities (e.g. women’s toilets comprising of several cubicles) or individual, lockable rooms, which can be single sex or mixed sex use. Although there does not appear to be any legal reason why an employer should not also provide mixed sex cubicles, these would need to be provided in addition to the toilets required under the guidance, as the legislation does not include mixed sex cubicles in its definition of “suitable”. 

The Supreme Court definition of “sex” etc only applies to the Equality Act and not expressly to the health and safety legislation. The Equality and Human Rights Commission (EHRC) interim guidance says that people should use facilities according to their biological sex. However, there is still some legal debate as to whether the EHRC interim guidance has interpreted the judgment correctly and it does not specifically address employment issues. In our view, the Supreme Court judgment has not provided clarity to employers about how they should manage facilities in the workplace, leaving employers grappling with the possibility of both sex and gender reassignment discrimination claims.

What can employers do?

How an employer approaches this difficult issue will depend on the available facilities.

Some employers are choosing to make no changes now and to wait until the revised guidance from the EHRC is published. The EHRC intends to produce practical guidance in the summer, and has recently opened a consultation. It is not currently consulting on changes to the Code of Practice on Employment, although Make UK will be pressing Government/the EHRC to ensure that it also provides guidance for employers.

If employers limit the use of single sex facilities to those of the same biological sex, they must ensure that appropriate facilities are provided for trans people. It may be possible to designate all or most individual, lockable toilets as mixed sex toilets if they have not already done so. It will not be compliant with the legislation to convert cubicle toilets to mixed sex, unless these are in addition to the single sex and/or individual, lockable room toilets an employer is required to have by law. It may be that employers will need to consider installing additional facilities.

From an employee relations perspective, workers may have strong views on each side and navigating any changes to facilities or who can use which facilities will not be easy. Keeping a constructive dialogue with all staff and explaining your approach will reduce the likelihood of claims. Employers face a difficult balancing exercise in relation to this highly complex issue.

How we can help

If this is an area in which your organisation would benefit from support, Make UK can provide further advice on how to adapt to the Supreme Court ruling and EHRC interim update. In addition, and more generally in the area of EDI, we provide a suite of products including general awareness training for employees and specific training for your HR and leadership teams. 

If you are a Make UK subscriber, you can speak to your regular adviser with any queries you may have and/or to request further consultancy support. Make UK subscribers can also access guidance on a wide range of employment law topics including template policies and drafting guidance in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, you can contact us for further support. Please click here for information on how we can help your business.