The Equality and Human Rights Commission (EHRC) has amended its post-Supreme Court guidance on single-sex workplace facilities, softening the hard line it adopted only two months ago and signalling a more pragmatic approach for employers.
What has changed?
Immediately after the Supreme Court’s April 2025 judgment in For Women Scotland Ltd v Scottish Ministers ,which confirmed that the word “sex” in the Equality Act 2010 means biological sex, the EHRC issued an interim update on 25 April. That document said employers were “required to provide sufficient single-sex toilets and, where necessary, single-sex changing and washing facilities,” and that trans women (biological males) must be excluded from women’s facilities, and vice-versa.
The regulator has now revised this wording, removing the sentence stating that single-sex toilets are compulsory. In its place, the EHRC now points employers to the Workplace (Health, Safety and Welfare) Regulations 1992, emphasising that organisations must provide “suitable and sufficient facilities” and that toilets, showers and changing rooms may be mixed-sex, provided each cubicle or room is lockable from the inside.
The update also stresses that it is not compulsory for services open to the public to operate on a single-sex basis.
A contemporaneous clarification notice confirms that the change was made to ensure “the most accurate information” and should not be read as a U-turn on the Court’s biological-sex ruling.
Commentators link the move to proceedings brought to challenge the April wording. The EHRC appears to have accepted that the 1992 Regulations already give employers flexibility, provided privacy is protected, and that overstating the duty risked misrepresenting the law and placing unnecessary cost burdens on businesses.
The core legal position set by the Supreme Court is untouched: for Equality Act purposes, “woman”, “man” and “sex” mean biological sex. The updated guidance also continues to warn that offering only mixed-sex facilities could amount to indirect sex discrimination against women, depending on the facts.
A short EHCR consultation on a wider Code of Practice is due to close on 30 June 2025.
Practical implications for employers
In short, the June 2025 amendment restores flexibility. Employers are required to provide adequate, private facilities, but they are not compelled to segregate toilets and changing areas by sex in every circumstance.
In light of the revised guidance, employers should take action to ensure there is a sufficient number of lockable, private spaces and, where changing/showering is required “for reasons of propriety”, a separate arrangement for women and men.
Any workplace policy that states single-sex toilets are compulsory should be rewritten. Organisations should instead refer to the 1992 Regulations and the new EHRC text, making clear that privacy, safety and dignity for all users are the guiding principles.
While the biological-sex definition stands, the EHRC has stepped back from telling employers to exclude trans employees categorically. Decisions on who may use which facility should be risk-based, proportionate and evidenced in writing.
The EHRC is consulting on a statutory Code of Practice that will eventually replace the interim note. Once the Code is laid before Parliament it will carry significant legal weight, so employers should engage with the consultation and monitor further updates.
Staying legally compliant now means focusing on suitability, privacy and documented reasoning rather than on a one-size-fits-all blueprint. For guidance on how you to ensure your organisation is compliant, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
