2 - Five Questions About the EHRC Toilet Guidance Judgment
What the High Court ruling actually means for trans people at work
This is Part Two of a four part series
Five Questions About the EHRC Toilet Guidance Judgment
Following the High Court’s judgment today in Good Law Project v EHRC, the questions I am being asked most are all very practical ones. Can my employer do this? Do I have to accept that? Here are the answers, based on what the judgment actually says.
Can a trans woman at work continue to use the ladies’ toilet?
This is the question everyone wants answered, and the answer is more encouraging than the headlines suggest.
The judgment confirms that the Workplace Regulations require employers to provide single-sex toilets (or individual lockable rooms). It also confirms that if a trans woman uses the women’s toilet, that facility technically ceases to be “single-sex” under the law. That sounds alarming, and it is the bit that will be seized upon.
However, and this is crucial, the judge also made clear that the law sets a floor, not a ceiling. The Workplace Regulations tell employers what they must provide as a minimum. They do not prohibit employers from providing more than that minimum. An employer who provides the required single-sex toilets and also provides a trans-inclusive facility, or who chooses to allow trans women to use the women’s facilities as part of a broader arrangement, is not breaking the law.
The judge also pointed out that the question of whether a man excluded from a trans-inclusive women’s facility would actually win a sex discrimination claim is far from certain. He said he was “less certain” than the EHRC on this point, and that there was scope for a “strong argument” that allowing trans women but not other men to use the women’s toilet would be different treatment, but not less favourable treatment. In other words, the EHRC’s claim that letting trans women in means you have to let all men in is not as clear-cut as the guidance suggested.
So in practice: yes, there are lawful ways for a trans woman to continue using the women’s toilet at work. It depends on how the employer structures their provision, and it is not the blanket “no” that many will present it as.
Can an employer make a trans woman use the men’s toilet?
No, and the judge was remarkably direct about this. He stated that the consequence of the Workplace Regulations “will not be that a transsexual person is required to use the lavatory that corresponds to biological sex.”
The reason is that employers do not only have to comply with the Workplace Regulations. They must also comply with their obligations under Part 5 of the Equality Act not to discriminate on the ground of gender reassignment. An employer who simply tells a trans woman to use the men’s toilet would need to justify that as a proportionate means of achieving a legitimate aim. The judgment makes clear that this would be very difficult to do, particularly where no alternative provision has been made.
If your employer has told you to use the toilet matching your biological sex, with no other option, this judgment actually supports the position that they may well be acting unlawfully. The gender reassignment protections in the Equality Act have not gone away.
Can an employer make a trans woman use the accessible toilet?
The judge addressed this directly, and the answer is nuanced. He acknowledged that the individual claimants in the case had sincere concerns about being directed to use accessible or unisex toilets, including worries about being visibly singled out and prompting speculation from colleagues.
He concluded that whether being directed to use a unisex or accessible toilet amounts to less favourable treatment would depend on the specific circumstances. He thought it would be the “more rare rather than more common” conclusion that this constituted discrimination, but he did not rule it out entirely.
He also made an important practical observation: there is no reason why such facilities need to be labelled “disabled” or “accessible.” The labelling could and should change, and he described this as a matter of “sensible accommodation.”
So the position is this: directing a trans person to use a separate facility is not automatically unlawful, but it is not automatically lawful either. The circumstances matter. If the facility is clearly labelled as a disabled toilet and using it would effectively out someone as trans to their colleagues, there is still an argument that this amounts to less favourable treatment. Employers should be thinking carefully about how they handle this, not just assuming they can point to the accessible loo and consider the matter closed.
Do employers have to provide separate toilets for trans people?
There is no specific legal requirement to provide a third set of toilets labelled “for trans people.” The Workplace Regulations require single-sex toilets for men and women, or individual lockable rooms.
However, the judgment is clear that employers cannot simply provide single-sex facilities and leave trans people with nowhere to go. The EHRC’s guidance itself said that trans people should not be put in a position where there are no facilities for them to use, and the judge upheld that point as legally sound.
The judgment also endorsed the EHRC’s suggestion that, where possible, mixed-sex toilet, washing or changing facilities should be provided in addition to single-sex facilities. This would be one way of meeting the proportionality requirement in the Equality Act. Individual lockable rooms that can be used by anyone are another.
The key principle is that employers have to think about this. They cannot just provide men’s and women’s facilities and ignore the fact that trans employees exist. The gender reassignment protections in the Equality Act require them to ensure their provision is not discriminatory, and that means making sure there is dignified, appropriate provision for everyone.
Can cis women object to a trans woman using the women’s toilet?
The Equality Act does contain a provision that allows single-sex services to be provided where a person of one sex “might reasonably object” to the presence of a person of the opposite sex. This is in Schedule 3 and it applies to services provided to the public, not specifically to workplaces.
It is important to understand what this does and does not mean. It means that a service provider can choose to make a facility single-sex if the reasonable objection condition is met and the provision is a proportionate means of achieving a legitimate aim. It does not mean that any individual woman has a legal right to demand that a trans woman be removed from a toilet. That is not how the Equality Act works.
The judge was very clear that the Equality Act is not a zero-sum game where one set of rights trumps another. He rejected that framing explicitly. The Act recognises multiple protected characteristics and provides protections for each. Any exclusion of a trans person from a single-sex service must be proportionate, and the judgment confirms that the proportionality requirement acts as a meaningful safeguard for trans people, not just a rubber stamp.
He also made a broader observation that is worth quoting. He said that those who provide facilities “should comply with the law but also be guided by common sense and benevolence rather than allow themselves to be blinkered by unyielding ideologies.” That is a message directed at everyone involved in this debate, and it is one I wholeheartedly endorse.
The law is complicated, and this judgment reflects that complexity. What it does not do is give employers or service providers a green light to treat trans people with anything less than dignity and respect. If you have been affected by changes your employer has made in response to the EHRC’s guidance, please do seek specialist legal advice. Your rights have not disappeared.