FAQ: Trans inclusion after the High Court decision on the EHRC’s interim guidance

Note: Good Law Project (and others) have filed an appeal to the decision of the High Court. Whilst we understand that the below is an accurate statement of the law following that decision, we do not believe that its conclusions are compatible with the human rights of trans people, or that it reflects the purpose of the Equality Act 2010.

This FAQ will be updated over time to reflect the most relevant concerns, and our understanding of the judgment.

Yes. The High Court is very clear that it will likely be lawful for service providers to allow trans people to use toilet and changing room facilities which align with their lived gender. There is no requirement of a ‘bathroom ban’.

The High Court concluded, at [26] (emphasis added):

“The [Interim Update] concerned when it would be permissible for a service provider to make a single-sex provision. It does not exclude or prohibit other provision.”

Some organisations have claimed, following the Supreme Court decision, that allowing e.g. trans women to use the women’s toilets would amount to direct discrimination against men. The High Court emphasised that where service provision is equal and separate for both men and women, this is unlikely to be true:

[61] …In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “the female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex…

This means that service providers may lawfully provide, for example, women’s toilets which both cis and trans women are permitted to use, but from which cis men are still excluded.

The High Court explicitly states that it is permissible for service providers to label such facilities, where they are trans-inclusive, simply as ‘men’s’ and ‘women’s’ [61].

When providing toilet and changing facilities, service providers must ensure they have considered the needs of all users. This includes those who for reasons of religion or belief do not want to use trans-inclusive facilities. Failure to provide appropriate facilities for these service users may amount to indirect discrimination, and would need to be justified as a proportionate means of achieving a legitimate aim.

It will likely be unlawful to require trans people to use services corresponding to their sex as recorded at birth.

This is recognised by the High Court at paragraph [71] (emphasis added):

When a service provider provides single-sex lavatories the exclusion of the possibility that that provision could give rise to discrimination on grounds of gender reassignment depends on whether the provision of the single-sex lavatories is proportionate to the objective being pursued (paragraph 28 of Schedule 3). That condition tends against a situation where the consequence of the single-sex provision is either no provision for [trans people] or a requirement that all must use lavatories corresponding to biological sex. Such an outcome would have to be justified as proportionate.

The High Court is clear that this will also apply to the provision of toilets and changing rooms in the workplace [71].

Requiring trans people to use facilities based on their sex recorded at birth will be difficult to justify. Where service providers and employers do so, they must show that it meets the relevant conditions under the Equality Act 2010’s single-sex exceptions, and is a proportionate means of achieving a legitimate aim.

Employers and service providers must therefore make sure that appropriate provision for trans employees and service users is in place.

If the contents of the draft Code of Practice have been accurately reported – then they do not accurately reflect the law.

Any Code of Practice must reflect the decision of the High Court that, for example, service providers may lawfully provide toilets on a trans-inclusive basis [61].

It is the obligation of the Minister for Women and Equalities, Bridget Phillipson, to make sure that any Code of Practice laid before Parliament accurately reflects the law. Any failure to do so will mean that the Minister has acted unlawfully, and potentially be subject to judicial review.

It may be lawful to exclude trans people from accessing services in line with their lived gender. However, where service providers do so, they must show that the exclusion meets the relevant conditions under the Equality Act 2010’s single-sex exceptions, and that it is a proportionate means of achieving a legitimate aim.

In doing so, service providers will need to consider the potential impact of exclusion on trans service users. In order to rely on the single-sex exceptions, service providers must show that doing so is proportionate having considered the needs of all service users.

Where trans people are permitted to use services in line with their lived gender (for example where a trans woman is permitted to use a women’s service) this will mean the service is no longer single-sex for the purposes of the Equality Act 2010 exceptions.

Workplaces are required to provide toilet, washing, and changing facilities on a single-sex basis except where these are provided in individual rooms which are lockable from the inside.

Single-sex toilet, washing, and changing facilities in the workplace must be provided on the basis of ‘biological sex’. It is not permissible for employers to allow, for example, trans women to use the women’s toilets, and for those toilets to be considered single-sex for the purpose of the workplace regulations.

The High Court is clear that this does not prohibit providing additional provision which is not single-sex, at [26]:

…although the 1992 Workplace Regulations do prescribe a requirement for “suitable and sufficient” lavatories, and also make express provision for what will amount to “suitable” by reference to separate provision for men and women, they do not prohibit additional provision beyond what is “sufficient”.

The High Court emphasises that this does not mean that trans people will be required to use facilities corresponding with their ‘biological sex’. Sufficient and appropriate provision must also be made for trans employees. At paragraph 42:

“where an employer provides lavatories as required by regulation 20 the consequence will not be that a [trans] person is required to use the lavatory that corresponds to biological sex. Rather, and in addition to complying with the requirement under the 1992 Workplace Regulations for “sufficient” and “suitable” lavatories the employer must also ensure that the lavatory provision he makes is not discriminatory on the ground of gender reassignment”

The High Court considers that this may be achieved via the provision of mixed-sex facilities in addition to single-sex ones [67]. These may be provided on a gendered basis. For example, an employer could provide single-sex women’s toilets alongside women’s toilets which both cis and trans employees were permitted to use. 

Employers should consider adapting their facilities to be provided on a universal basis, in individual lockable rooms. This avoids potential claims of discrimination on the basis of sex, gender reassignment, or any other protected characteristic whilst complying with the regulations. It also increases accessibility for many disabled people, who would benefit from lockable facilities with a sink provided, but may not actually require a larger wheelchair-accessible toilet.