4 - Trans at Work: Your Rights, Your Toilets, Your Dignity - a guide for employees and employers
A plain-language guide to knowing where you stand and what you should do
This is Part Four of a four part series
Trans at Work: Your Rights, Your Toilets, Your Dignity - a guide for employees and employers
If you are a trans person going to work every day and just wanting to use the toilet in peace, this guide is for you. If you are an employer wanting to be inclusive and within the law, it is for you too. No complicated legal language. Just what you need to know, what to look out for, and what to do about it.
The First Thing To Know
If nobody has asked you to change what you are doing, do not change. If you are using the toilet that fits your gender and your employer has not raised it, carry on. There is no law that says you have to stop. There is nothing to comply with.
If Your Employer Asks You to Change
If your employer tells you that you need to start using a different toilet, whether that is the one matching your biological sex, the accessible toilet, or any other arrangement, here is exactly what to do.
Step one: Ask to see the policy
Do not just accept what you are told. Ask to see the written policy. Not a verbal instruction from your manager. Not a casual conversation. The actual written policy that explains what the arrangements are and why.
You are entitled to see this. Your employer is making a decision that directly affects you because of a protected characteristic. That decision needs to be documented, explained and justified. Asking to see the policy is a completely reasonable request and it puts the responsibility where it belongs: on your employer to show their working.
Step two: If there is no policy, do not change
If your employer cannot show you a written policy, you do not need to comply with a verbal instruction to change which toilet you use. A decision that affects your rights under the Equality Act cannot be based on a chat in the corridor, a reaction to a news headline, or something your manager heard secondhand.
You can say, politely and clearly: “I am happy to follow a written policy once I have had the chance to read it and understand the reasons behind it. Until then, I will continue to use the facilities I have always used.”
This is not being difficult. This is asking your employer to do what the law expects of them. If they want to change your arrangements, they need to have thought it through properly, put it in writing, and be able to explain why.
Step three: If there is a policy, read it carefully
If your employer does have a written policy, read it with these questions in mind.
Does it explain what the policy is trying to achieve? Under the Equality Act, any decision to treat you differently because of gender reassignment must have a legitimate aim. That means a real, genuine reason. Not “the EHRC said so.” Not “someone complained.” Not “we thought we should, just in case.” A legitimate aim might be protecting privacy in a shared space, but even then, the next question matters just as much.
Does it explain why this particular arrangement is the right response? This is the proportionality question. Even if the aim is legitimate, the way the employer achieves it has to be the least restrictive option available. If the concern is privacy, could they improve cubicle walls instead of excluding you? Could they provide an additional private space for anyone who wants one, rather than moving you out of the main facilities? If there is a less restrictive way to achieve the same aim, then excluding you is not proportionate, and the policy is unlikely to be lawful.
Does it consider the impact on you? A lawful policy needs to show that someone has actually thought about what this means for the trans employees affected. Has the employer considered your dignity? Has the employer considered whether this arrangement might out you to your colleagues? Has the employer considered the alternatives? If the policy reads as though it was written without any thought for the people it affects, that is a problem.
If the policy does not answer these questions clearly and convincingly, it is unlikely to pass the legal test. That does not mean you have to accept it.
What the Policy Might Say, and Why It Might Be Wrong
“Trans women must use the men’s toilet”
The High Court has said, in clear terms, that this is not what the law requires. The judge 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.”
Your employer does not just have to follow the Workplace Regulations. They also have to follow the Equality Act, which says they cannot discriminate against you because of gender reassignment. A policy that simply says everyone must use the toilet matching their biological sex does not attempt to be proportionate and does not identify a legitimate aim. It is not lawful.
“Trans employees should use the accessible toilet”
Ask your employer this: why is it the trans person who has to move? If someone else feels uncomfortable sharing a facility, why not make the private space available to the person who wants more privacy, and let the trans person continue using the facilities that match their gender?
Directing you to the accessible toilet may effectively out you to your colleagues. If everyone can see that you are the one walking past the women’s to use a different facility, people will notice and people will talk. That is a real and serious consequence that your employer needs to have considered before making this decision.
“This only applies if you have a Gender Recognition Certificate”
This is wrong. The Equality Act protects you from discrimination on the ground of gender reassignment. That protection applies whether or not you have a GRC. It applies whether you are proposing to undergo, are undergoing, or have undergone any part of a process of changing your sex. It does not depend on a certificate, on surgery, or on how far along you are. The High Court confirmed this. If the policy makes a distinction based on GRC status, there is no legal basis for it.
Your Employer Needs to Understand the Consequences
This is important, and it is something you are entitled to make clear to your employer. Treating you differently because you are trans, or putting arrangements in place that have the effect of outing you as trans, are not minor matters. They carry real legal consequences.
Treating you differently is discrimination
If your employer excludes you from the facilities that match your gender because you are trans, that is direct discrimination on the ground of gender reassignment. It does not matter that they think they are following guidance or being cautious. If the reason you are being treated differently is your trans status, and if that treatment cannot be justified as a proportionate means of achieving a legitimate aim, it is unlawful. That means you can bring a claim, and your employer can be held to account.
Outing you is a serious matter
If your employer’s arrangements have the effect of disclosing your trans status to colleagues without your consent, that is a significant breach of your rights. Being outed can affect your safety, your mental health, your working relationships, and your ability to do your job. It can also amount to harassment under the Equality Act if it creates a hostile or degrading environment for you. Your employer needs to understand that any policy that could out a trans employee needs to be assessed very carefully, and that getting this wrong could result in a discrimination or harassment claim.
There is no protection for “we didn’t know”
Ignorance of the Equality Act is not a defence. Your employer has a legal obligation to understand their duties and to make sure their policies comply. If they have reacted to a headline or to guidance that has since been removed from the EHRC’s website, without taking proper legal advice and without thinking through the impact on their trans employees, that is their failure, not yours. The law does not give employers a free pass because they were trying to do the right thing. The question is whether they actually did the right thing, and if their policy does not pass the proportionality test, the answer is no.
What you can say to your employer
You do not have to use legal language. You can say something like this:
“I want to make sure you are aware that the Equality Act protects me from being treated differently because of my gender reassignment. If this policy has the effect of treating me less favourably, or of revealing my trans status to colleagues, that could give rise to a discrimination claim. I am not saying that to be difficult. I am saying it because I want us to find an arrangement that works for everyone and that is lawful. I would really welcome the chance to talk about this properly.”
That is reasonable, it is clear, and it puts your employer on notice that you know your rights without being aggressive about it. Most employers, when they understand the position properly, will want to find a solution.
The Two Questions Every Policy Must Answer
Every policy that affects your access to facilities has to pass a legal test. It has to be a proportionate means of achieving a legitimate aim. That boils down to two questions.
What are you trying to achieve? This is the legitimate aim. It has to be a real reason. Protecting privacy in a shared space could be a legitimate aim. “We read it in the news” is not. “Someone complained” is not. “We thought it was simpler” is not.
Is this the least restrictive way to achieve it? This is the proportionate means. If the aim is privacy, could you achieve that by improving cubicle walls, or by providing an extra private space for anyone who wants one? If there is a less restrictive way to achieve the same aim, then excluding a trans person is going further than necessary, and the policy is not proportionate.
If a policy cannot answer both of these convincingly, it is unlikely to be lawful.
Template Letter: Challenging a Policy
If your employer has introduced a policy that affects your access to facilities, here is a letter you can adapt and send. Take what is relevant to your situation.
Template Policy: An Inclusive Approach
If your employer is open to getting this right, or if you want to show them what a good policy looks like, here is a template they can adapt.
What About Small Workplaces?
The Template Policy talks about providing individual lockable facilities alongside single-sex ones. That is the ideal, but plenty of workplaces are small and do not have the space for that. A small office, a shop, a café, a workshop. These places still have trans employees and they still have legal obligations. So what happens in practice?
Here are three common setups and how each one works.
One toilet, used by everyone
This is actually the simplest situation. If your workplace has a single toilet in a lockable room, used by one person at a time, there is no issue at all. Everyone uses it. You use it. The end.
The Workplace Regulations say that an employer can meet their obligations by providing toilets in separate lockable rooms used by one person at a time. A single lockable toilet does exactly that. There is no question of single-sex provision because the room is private. There is no question of who belongs where because everyone uses the same facility.
If your employer has one lockable toilet and is somehow still trying to create a problem about you using it, there is no legal basis for that whatsoever. You are entitled to use the toilet at work. This is it. You use it.
Two toilets: one with a urinal, one with a sit-down toilet, walls not floor to ceiling
This is very common in smaller workplaces. Two separate toilet rooms or cubicles, one fitted with a urinal and one with a standard toilet, and the walls between them or around them do not go all the way to the floor or ceiling.
The first thing to say is that the lack of floor-to-ceiling walls is a privacy issue for everyone, not just for trans people. Plenty of people feel uncomfortable using facilities where they can be seen or heard through gaps in the walls. If privacy is a concern, the answer is to improve the facilities for everyone, not to exclude one person.
Which toilet should you use? The one that matches your gender. If you are a trans woman, use the sit-down toilet. If you are a trans man and you are comfortable using the urinal, use that one. If you are a trans man and you would rather use the sit-down toilet, that is also fine. Lots of men prefer a sit-down toilet. That is not unusual and nobody needs to justify it.
What if someone objects? If a colleague is uncomfortable sharing with you, the question for the employer is the same as always: is there a proportionate way to address that concern? In a two-toilet setup, the options are limited. The employer could look at improving the physical privacy of the facilities, for example by upgrading the partitions or doors. What the employer cannot do is tell you to use the wrong toilet, or to stop using the facilities altogether. That does not pass the proportionality test, especially when the alternative for you is nothing.
What about the privacy concern? If the walls are not floor to ceiling and someone is worried about privacy, that is a legitimate thing to raise. The answer is to fix the walls, not to move the trans person. Improving privacy benefits everyone. Excluding a trans person benefits nobody. If your employer says they cannot afford to improve the facilities, that does not give them the right to discriminate against you instead. The lack of investment in the building is the employer’s problem to solve, not yours.
Two blocks: one for men, one for women
This is the traditional setup. A men’s block and a women’s block, often with multiple cubicles and possibly shared washing areas. No additional private facility.
Which block should you use? The one that matches your gender. If you are a trans woman, use the women’s. If you are a trans man, use the men’s. The law does not prohibit this. The High Court confirmed that trans-inclusive facilities are lawful and that the Workplace Regulations set a minimum, not a maximum.
What if your employer says you cannot? Then ask the questions. What is the aim? Is this proportionate? In a workplace with only two blocks and no additional facility, what exactly is the employer expecting you to do? If the answer is “use the block matching your biological sex,” the judge has said that is not what the law requires. If the answer is “we don’t know,” that tells you the employer has not thought this through properly.
This is where proportionality really matters. When there is no additional private facility, the employer’s options are limited. They can let you use the block that matches your gender, which is lawful. Or they can exclude you, which means either forcing you into the wrong block or leaving you with nowhere to go. Neither of those is likely to be proportionate. In a building where there is no third option, trying to exclude a trans person from the facility that matches their gender becomes very hard to justify legally, because the consequence for the trans person is so severe and the alternatives are so limited.
What if a colleague objects? The Equality Act does not give any individual the right to have someone else removed from a shared facility. If a colleague is uncomfortable, the employer needs to find a proportionate response. That might mean looking at whether the physical environment could be improved. It might mean thinking about whether a private facility could be created. What it does not mean is that the trans person has to leave. The judge was clear that one set of rights does not trump another, and that the Equality Act is more nuanced than a zero-sum game.
If the employer genuinely cannot create any additional provision, that actually strengthens your position. The less room there is for alternatives, the harder it is for the employer to argue that excluding you from the facility that matches your gender is proportionate. There is nowhere else for you to go, so excluding you effectively leaves you without dignified access to facilities at all. That is very unlikely to be lawful.
The common thread
In every one of these situations, the same principle applies. The employer has to balance their obligations under the Workplace Regulations with their obligations under the Equality Act. In a small workplace with limited facilities, the Equality Act protections become more important, not less, because the consequences of getting it wrong are more severe for the person affected.
If there is only one toilet, everyone uses it. If there are two, you use the one that matches your gender. If there are separate blocks, you use the one that matches your gender. If someone is uncomfortable, the employer should look at improving privacy for everyone, not at removing you.
The smaller the workplace, the more visible any exclusion will be, the more likely it is to out you, and the harder it is to justify as proportionate. That is worth remembering, and it is worth making sure your employer remembers it too.
If Things Do Not Get Better
Step one: Send the letter
Use the template above or adapt it. Send it to your manager or HR. Keep a copy. This creates a written record and puts your employer on notice that you understand your rights. If they do not respond, or if they respond without properly answering your questions, that tells you a lot.
Step two: Raise a formal grievance
Every employer is required to have a grievance procedure. If your letter does not resolve things, use it. Put your complaint in writing, explain what has happened, explain why you believe the policy is discriminatory, and ask for a formal response. Keep copies of everything.
Step three: Contact ACAS
Before you can bring a claim to an Employment Tribunal, you have to go through ACAS Early Conciliation. ACAS is the Advisory, Conciliation and Arbitration Service and it is free to use. You contact them, they notify your employer, and there is a window where both sides can try to resolve things. This step is not optional if you want to bring a tribunal claim, so do not skip it.
Step four: Employment Tribunal
If conciliation does not work, ACAS will issue a certificate that allows you to bring a claim. You would be claiming discrimination on the ground of gender reassignment under the Equality Act 2010. There are strict time limits, usually three months less one day from the act you are complaining about, though the ACAS process pauses the clock. Get legal advice before taking this step. Some solicitors offer free initial consultations, and organisations that support trans people may be able to help you find one.
Throughout all of this: keep records
Write down everything. Every conversation, every email, every instruction. Note when it happened and who was involved. Record how it has affected you: your wellbeing, your ability to work, your dignity, your safety. If you were outed, say so. If you felt unsafe, say so. This evidence matters, and it is much easier to record it as it happens than to try to remember later.
You should not have to fight to use the toilet at work. That is such a basic thing. The law is on your side, even when it does not feel like it. I hope this guide helps you know where you stand and feel more confident about standing there.
Have you had to challenge your employer’s toilet policy? How did it go? Tell me in the comments.