The Equality and Human Rights Commission (EHRC) has issued interim guidance following the Supreme Court decision in the case of For Women Scotland v Scottish Ministers, which confirmed that the definition of “woman” (and, by extension “man” and “sex”) refers to biological sex for the purposes of the Equality Act 2010.

The interim guidance mainly focused on the provision of single sex spaces. The guidance confirms that it is compulsory for employers to provide sufficient single-sex toilets, as well as sufficient single sex changing and washing facilities (where these are required). 

In relation to who may access these single sex spaces, the interim guidance indicates that transgender women (i.e. those who were born male) should not be permitted to use women’s facilities and transgender men (i.e. those who were born female) should not be permitted to use the men’s facilities. The logic provided is that allowing transgender people to use single sex spaces on the basis of their acquired gender would mean that those spaces were no longer single sex, and should instead be open to all users of the opposite sex. 

However, the guidance also seems contradictory on this point, as it states that in some circumstances the law allows transgender women (i.e. those who were born male) not to be permitted to use the men’s facilities, and transgender men (i.e. those who were born female) not to be permitted to use the women’s facilities. This could be where it would otherwise be deemed inappropriate for a transgender person to use the facilities of their biological gender, because they outwardly appear as their acquired gender.

The guidance does confirm that where an employer has facilities for both men and women, transgender people should not be left without a facility to use. The suggestion within the guidance is to have a mixed-sex toilet, washing or changing facility available, in addition to the single sex spaces. The guidance also confirms that, where a toilet is a separate room intended for use by one person at a time (not a cubicle within a toilet), they can be used by anyone of any sex.

The EHRC interim guidance brings some clarity in terms of the adjustments employers should be making following the Supreme Court’s decision. However, the judgment still presents practical difficulties for employers seeking to maintain inclusive practices, whilst staying compliant with the law.

The EHRC comment within the interim guidance that they are working at pace to deliver more detailed guidance on the Supreme Court’s judgment, and it aims to provide an updated Code of Practice to the government by the end of June for ministerial approval. 

Dr Victoria McCloud, a transgender former judge, has stated that she intends to challenge the decision of the Supreme Court at the European Court of Human Rights on the basis that transgender people were not properly or directly consulted in the course of this litigation.