The Equality and Human Rights Commission has issued interim guidance on the practical implications of the Supreme Court’s decision in For Women Scotland v The Scottish Ministers.
The guidance reiterates the Supreme Court’s ruling that in the Equality Act 2010 (EqA) sex means biological sex i.e. a woman is a biological woman or girl, born female and a man is a biological man or boy, born male. If someone identifies as trans they do not change sex for the purposes of the EqA even if they have a Gender Recognition Certificate i.e. a trans woman is a biological man and a trans man is a biological woman.
The ramifications of this judgment will have far-reaching implications for many organisations including for workplaces, public services, sporting bodies, schools and associations (clubs/groups of more than 25 people who have membership rules).
For workplaces it will be compulsory to provide sufficient single-sex toilets and changing and washing facilities.
It will not be compulsory for services that are open to the public to be provided on a signle-sex basis or to have single-sex facilities but they can be single-sex if it is a proportionate means of achieving a legitimate aim and other conditions in the EqA are met. It could be indirect sex-discrimination against women if only single-sex provisions are made.
In workplaces and services that are open to the public trans women (i.e. biological men) should not be permitted to use women’s facilities and vice versa for trans men. In some circumstances trans women may not be permitted to use men’s facilities and vice versa for trans men using women’s facilities.
Where facilities are available to men and women trans people should not be in a position where they have no facilities.
If possible mixed-sex and single-sex facilities should be provided. If facilities for use of one person at a time and are lockable they can be used interchangeably.
Schools must provide single sex toilets for boys and girls over the age of 8. Single-sex changing facilities must be provided for children aged 11 and over. Suitable provisions should be made for trans children such that they do not use the facilities of their acquired gender.
The EHRC aims to issue and approve guidance for ministerial approval by the end of June 2025. The EHRC’s Code of Practice will also be updated. The link to the guidance on the EHRC’s media centre page is here: https://www.equalityhumanrights.com/media-centre/interim-update-practical-implications-uk-supreme-court-judgment.
