3 - Toilets, Trans People and the Law: What You Need to Know
Three perspectives on the High Court’s EHRC guidance judgment, 13 February 2026
This is Part Three of a four part series
Toilets, Trans People and the Law: What You Need to Know
The High Court has handed down its judgment in Good Law Project v EHRC, a case about the EHRC’s interim guidance on single-sex facilities following the Supreme Court’s For Women Scotland ruling. The challenge was dismissed, meaning the guidance was found to be lawful. That is the headline, but the judgment itself contains important detail that everyone involved in this conversation needs to understand.
I have broken this down into three sections, because different people are coming to this from different places with different concerns. Whether you are an employer trying to do the right thing, a trans person worried about your rights, or someone who has concerns about sharing facilities, this is for you.
For Employers: How to Get This Right
If you are an employer trying to work out what you are supposed to do about toilet provision after this judgment, here is the practical picture.
What the law requires you to provide
The Workplace Regulations require you to provide suitable and sufficient toilet facilities. You can meet this requirement in one of two ways: either by providing separate single-sex toilets for men and women, or by providing individual lockable rooms that can be used by one person at a time. You can also use a combination of both. This is the minimum. The law sets a floor, not a ceiling, and the judge in this case was emphatic about that. You are always free to provide more than the minimum.
You cannot ignore your trans employees
This is where employers are most likely to go wrong. Meeting your obligations under the Workplace Regulations is not the end of the story. You must also comply with the Equality Act, which protects people from discrimination on the ground of gender reassignment. The judge stated clearly that the consequence of providing single-sex toilets “will not be that a transsexual person is required to use the lavatory that corresponds to biological sex.” You have to think about how your provision works for everyone.
What good provision looks like
The judgment endorsed the EHRC’s suggestion that, where possible, employers should provide mixed-sex or unisex facilities in addition to single-sex ones. Individual lockable rooms are a straightforward way to do this. If you do direct trans employees to use a separate facility, think carefully about how it is labelled and located. The judge noted that there is no reason these need to be labelled “disabled” or “accessible,” and described appropriate labelling as a matter of “sensible accommodation.”
What you should not do
Do not simply tell a trans woman to use the men’s toilet. Do not tell a trans man to use the women’s. The judgment is clear that this would engage gender reassignment discrimination protections and would need to be justified as proportionate, which would be very difficult to do. Do not assume that pointing someone to the disabled toilet is automatically a lawful answer either. The circumstances matter, and if the effect is to single someone out or effectively out them to their colleagues, there is still a potential discrimination claim.
Do not assume that the EHRC’s interim guidance (which has now been removed from its website) gave you a blanket justification to exclude trans people from the facilities that align with their gender. It did not, and this judgment confirms that the proportionality requirement in the Equality Act is a meaningful safeguard, not a formality.
The judge’s advice to you
Mr Justice Swift 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 the standard to aim for. Comply with the Workplace Regulations, comply with the Equality Act, and treat all your employees with dignity. If you are unsure, take specialist legal advice. The existing EHRC Services Code of Practice is out of date and the new one has not yet been approved, so this is genuinely a moment where professional guidance matters.
For Trans People: Your Rights Have Not Disappeared
If you are a trans person reading the headlines about this case and feeling frightened, please read this section carefully. The picture is not as bleak as it may first appear.
You are still protected by the Equality Act
The protected characteristic of gender reassignment has not been removed, diminished or overridden by this judgment. The judge confirmed that employers who provide single-sex toilets under the Workplace Regulations must also comply with their obligations under the Equality Act not to discriminate on the ground of gender reassignment. These are two sets of legal obligations that sit alongside each other, and employers have to meet both.
You cannot be forced to use facilities that match your biological sex
The judge said this in terms. The consequence of the Workplace Regulations “will not be that a transsexual person is required to use the lavatory that corresponds to biological sex.” If your employer has told you that you must now use the men’s toilet (if you are a trans woman) or the women’s (if you are a trans man), that is not what the law requires. Your employer would need to justify that as a proportionate means of achieving a legitimate aim, and the judgment makes clear that this would be very hard to do.
You cannot be left with no facilities at all
The judgment upheld the EHRC’s own guidance on this point: if single-sex facilities are provided, trans people should not be put in a position where there are no facilities for them to use. The proportionality test in the Equality Act means that any arrangement that effectively leaves you with nowhere to go is very unlikely to be lawful.
Being directed to a separate facility is not automatically discrimination, but it might be
The judge acknowledged the concerns raised by the individual claimants in this case about being directed to accessible or unisex toilets. He accepted these concerns were sincerely held. He concluded that whether this amounts to less favourable treatment depends on the circumstances. If using a separate facility effectively outs you to your colleagues, or if it is clearly labelled in a way that marks you out, there is still scope to argue that this is discriminatory. The judge also said there is no reason facilities need to be labelled “disabled” and that sensible relabelling should happen.
Trans-inclusive facilities are not illegal
This is perhaps the most important practical point in the judgment. The law does not prohibit an employer or service provider from offering trans-inclusive facilities. It sets out what must be provided as a minimum, not what is the maximum that can be provided. An employer who meets the Workplace Regulations requirements and also chooses to allow trans women to use the women’s facilities is not breaking the law. The judge was also notably sceptical of the claim that doing so would open the door to a successful discrimination claim by a man. He described this as uncertain and said there was a strong argument that it would be different treatment, not less favourable treatment.
What you can do
If your employer has changed your toilet access in response to the EHRC’s guidance, this judgment does not validate everything they may have done. The guidance has been removed from the EHRC’s website. The arrangements your employer put in place still need to comply with the Equality Act’s gender reassignment protections. If you believe you are being treated less favourably because of your gender reassignment, you may have a discrimination claim, and it would be worth seeking specialist legal advice.
For Those With Concerns About Sharing Facilities
If you have concerns about sharing toilet or changing facilities with someone of the opposite biological sex, I want to address those concerns honestly and respectfully.
The law does recognise your concerns
The Equality Act contains provisions that allow single-sex services to be provided in certain circumstances. The judgment confirmed that these provisions are lawful and that a service provider can offer single-sex facilities where doing so is a proportionate means of achieving a legitimate aim. One of the conditions in the Act is that a person of one sex “might reasonably object” to the presence of a person of the opposite sex. The Workplace Regulations also require employers to provide single-sex toilets or individual lockable rooms. These protections exist and they have been upheld.
What the law does not give you
The Equality Act does not give any individual person the right to demand that another person be removed from a facility. It does not create a hierarchy where sex-based rights automatically override gender reassignment protections. The judge was very clear about this. He explicitly rejected the framing that one set of rights “trumps” another, and described the Equality Act as more nuanced than a zero-sum game. The Act recognises multiple protected characteristics and provides protections for each.
What this means in practice
If you use a single-sex facility that is provided on a lawful basis, the law supports that provision. If a service provider or employer has decided to make a facility single-sex as a proportionate means of achieving a legitimate aim, that is lawful. What is not lawful is using these provisions to strip trans people of all access to dignified facilities, or to treat them with less respect than anyone else.
The judgment confirmed that trans people cannot simply be told to use the facilities matching their biological sex. It confirmed that arrangements must be made so that trans people are not left with no facilities to use. It endorsed the provision of additional unisex or mixed-sex facilities alongside single-sex ones. These are not threats to anyone’s safety or dignity. They are the law working as it should, balancing the needs of everyone.
A word about proportionality
The word “proportionate” appears repeatedly in this judgment, and it is the key to understanding how the law works in this area. Every decision about single-sex provision has to be proportionate. That means it has to be a reasonable and justified response to a real need, not a blanket policy driven by discomfort or ideology. The judge called for “common sense and benevolence” from everyone involved. That means recognising that a trans woman using a women’s toilet is not a threat to anyone, while also recognising that there are circumstances where single-sex provision serves a legitimate purpose.
The human reality
At the heart of this case were three real people. An intersex woman who has lived her entire life as female, told she could no longer use the women’s toilet at work. A trans woman with a gender recognition certificate, directed to the men’s. A trans man told to use the disabled toilet. Whatever your views on single-sex provision, I would ask you to sit with those facts for a moment. These are people who just want to go to the toilet at work without being humiliated. The law should protect everyone’s dignity, and this judgment confirms that it does.
The most important thing right now is that we all take the time to understand what the court actually said, rather than relying on headlines.