EHRC backs down on single-sex toilets

In formal pre-action correspondence in response to Good Law Project’s letter, lawyers for the Equality and Human Rights Commission (EHRC) have abandoned its previous position that employers are obliged to provide single-sex toilets.

The EHRC’s interim update stated (and still states) that: “In workplaces, it is compulsory to provide sufficient single-sex toilets….” But its pre-action response to Good Law Project concedes that what it meant to say was that “where separate facilities are lawfully provided for ‘men’ and ‘women’, this means for biological men and women [our emphasis]” and that where a toilet “is in a separate room the door of which is capable of being secured from inside” the employer will satisfy its obligations.

In other words, an employer does not need to provide single-sex toilets.

Good Law Project will argue before the High Court that even the EHRC’s modified position remains wrong – if an employer chooses to provide separate facilities for men and women it does not need to provide them on the basis of sex assigned at birth.

There has also been a notable softening of its tone. In its interim update the EHRC emphasised that “this update is intended to highlight the main consequences of the judgment. Employers and other duty-bearers must follow the law.” Many employers read that as a threat and took immediate action against their trans employees with very serious consequences in some cases. The EHRC also emphasised that, for the purposes of its consultation, “The Supreme Court made the legal position clear, so we will not be seeking views on those legal aspects.”

But its position now is that the interim update was merely “some observations – brief and high level” which were contained “in the section of the website titled ‘Media centre’ as ‘News’ which is distinct from and separate to the ‘Guidance and advice’ section of the website” and is “different from when it was initially published” and “remains subject to change as appropriate”.

Finally the EHRC’s lawyers also seem to disagree with Kishwer Falkner, chair of the EHRC, about Article 8 – the right to privacy. Before the Women and Equalities Select Committee, she had asserted that “We do not think Article 8 rights apply.” But the letter concedes the contrary.

Good Law Project filed its judicial review claim on 6 June 2025.

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