Practical implications of Supreme Court decision on the legal definition of a woman

Following the Supreme Court’s decision in For Women Scotland v The Scottish Ministers, the Equality and Human Rights Commission (EHRC) has released interim guidance on the implications of the decision on the use of single sex facilities.

It highlights the requirement for employers to provide sufficient single-sex toilets as well as sufficient single-sex changing and washing facilities, where these are needed. The guidance makes it clear that 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. 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. Mixed-sex toilet, washing or changing facilities should be provided in addition to sufficient single-sex facilities, where possible.

The guidance should be read alongside the existing regulations in this area which are contained within The Workplace (Health, Safety and Welfare) Regulations 1992. In other words, where toilet facilities are contained within lockable “rooms” in line with the EHRC guidance, these should be accessible by women or men. However, in the case of stalls/cubicles, use should be limited to biological sex.

The EHRC will continue to update its statutory and non-statutory guidance in this area.

If you have any questions about this article or the wider practical implications of the Supreme Court decision, please contact a member of the Employment team.