The provision of single-sex facilities in the workplace

By Ethan Diver

Solicitor

22 May 2025

Insights News

The requirement for employers to provide certain single-sex facilities for their workforce has applied since The Workplace (Health, Safety and Welfare) Regulations (“the Regulations”) came into force in 1992. However, following the Supreme Court’s landmark decision in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16, this requirement and the relevant provisions of the Regulations have acquired renewed and significant importance.

The Regulations

There are three regulations which address the provision of single-sex facilities in the workplace. These require:

• that “sanitary conveniences” (i.e. toilets) and, where needed, washing facilities (e.g. showers) are separated for men and women (regulations 20(2)(c) and 21(2)(h), respectively); and
• that, where needed, changing facilities (e.g. changing rooms) are provided or are able to be used separately by men and women “where necessary for reasons of propriety” (regulation 24(2)).

The Supreme Court’s decision

The Supreme Court’s judgment determined that references to “sex” in the Equality Act 2010 are to a person’s biological sex only and not, for example, to their certified sex.

Following this reasoning, it is highly likely that the references to “men” and “women” in the Regulations are also to biological sex only. However, in any event, the exemption at paragraph 1(1)(a) of Schedule 23 of Equality Act 2010 exempts employers from liability where they do anything “in pursuance of an enactment”. Therefore, employers who provide toilets, washing facilities and/or changing rooms on a single-sex basis by reference to biological sex only can comfortably rely on this exemption in response to accusations of sex or gender reassignment discrimination. The subsequent interim guidance issued by the Equality and Human Rights Commission (EHRC) further clarifies that this means that trans women (biological men) should not be permitted to use women’s facilities and that trans men (biological women) should not be permitted to use men’s facilities.

Employers who were to provide these facilities on any other basis – such as allowing individuals to use facilities which correspond with their acquired or self-identifying gender – could not rely on this exemption if they were challenged by workers who objected to sharing facilities with members of the opposite biological sex.

Practical implications

This decision has meant that employers with trans workers have been faced with a difficult conundrum about which facilities they should be required to use. Whilst requiring trans workers to use the facilities which correspond with their biological sex will be legally compliant, it may create discomfort for them.

One potentially attractive solution – which is encouraged by the EHRC’s interim guidance where possible – is for employers to provide unisex facilities (in addition to single-sex facilities) which may be used by all employees regardless of their sex or gender. However, employers who adopt this approach should have regard to the relevant provisions of the Regulations in order to ensure that their unisex facilities are compliant.

In particular, unisex toilets and washing facilities will only be compliant where they are located in a separate room(s) from male and/or female facilities and the door is lockable from the inside. In relation to washing facilities, the Regulations state that each room must be intended for use by one person at a time. Although that wording is not replicated in relation to toilets, employers should equally ensure that rooms containing a single unisex toilet are intended for use by one person at a time or spaces with multiple unisex toilets are separated into individually lockable rooms (not cubicles).

Moreover, employers should be reminded that toilets must be adequately ventilated and lit and kept in a clean and orderly condition, whilst washing facilities should also include a supply of clean hot and cold (or warm) water, soap (or other suitable means of cleaning) and towels (or other suitable means of drying) to satisfy the Regulations.

As for changing rooms, employers may consider a similar approach by providing individual, lockable changing rooms which may be used by all employees regardless of their sex or gender. These changing rooms must also be easily accessible, of sufficient capacity and include seating to meet the requirements of the Regulations.

Code of Practice

Whilst these issues have attracted significant attention in an abrupt manner, employers may take additional comfort that further practical guidance is expected soon. The EHRC has just opened its consultation with affected stakeholders and intends to update its Code of Practice for ministerial approval by the end of June 2025.

In the meantime, if you require further advice on these issues, or any other employment law matters, please contact Taylor Walton’s employment team here.

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