Single-sex space guidance updates

Following The Equality and Human Rights Commission (EHRC) revised interim update on the practical implications of the Supreme Court’s For Women Scotland decision, we now have our first case law on this subject.

This is an Employment Tribunal decision (not an Employment Appeal Tribunal ruling), so it isn’t legally binding. However, it offers light and additional guidance for employers who are floundering with this controversial, and still largely undefined, area.

A quick recap

The EHRC’s April 2025 update placed particular emphasis on the compulsory provision of single-sex toilets, changing and washing facilities.

This position prompted questions and legal challenges, given that the Supreme Court ruling did not directly address this issue.

In its June 2025 revision, the EHRC has removed that statement and instead restated the existing legal framework under the 1992 Health and Safety Regulations.

In summary, employers must ensure that:

• “Men” and “women” have separate facilities, unless each facility is a self-contained, lockable, single-user room.

The EHRC also clarified that where lawful single-sex facilities are provided:

• Trans women should not use cis women’s facilities, and trans men should not use cis men’s facilities, as this would mean the facilities are no longer single-sex according  to the ruling.

• However, employers should not leave trans people without access to facilities, and are encouraged to provide mixed-sex options alongside single-sex spaces where possible. This position prompted questions and legal challenges, given that the Supreme Court ruling did not directly address this issue.

The EHRC confirmed that its updates are not formal guidance, and there remained ambiguity in its wording.

Many employers faced uncertainty: for some time, their transgender employees had been using single-sex facilities that do not align with their biological sex, without objection. The question became – does this breach the law?

The recent case of Sandie Peggie v NHS Fife offers insight into how a Tribunal might approach such situations.

Peggie raised concerns about her manager using female changing rooms. The Tribunal considered whether her concerns amounted to discrimination and misconduct, and whether the employer’s decision to allow the manager to use those facilities was unlawful.

In summary, the Tribunal concluded that the Supreme Court ruling does not mean that it is inherently unlawful for a transgender woman, who is biologically male, to be allowed to use female changing rooms at work.

However, it also found that permission for a transgender woman to use female changing rooms at work is not necessarily lawful.

Confused?

In what appears to be a common sense approach, it found that:

“it was initially lawful for NHS Fife to grant Peggie’s manager permission to use the female changing rooms. However, once Peggie had made a complaint, this permission should have been revoked on an interim basis and alternatives considered”. 

So, if it isn’t broken, don’t fix it approach. This may give some reassurance to employers who have similar situations, that they do not need to act immediately and risk employee unrest – however, this position changes upon receiving a complaint. Legal advice should then be taken on the action required.

Looking ahead

Further clarification is likely through future case law, legislation or statutory guidance.

In the meantime, employers must take a careful and balanced approach, ensuring they meet legal obligations while respecting the rights, safety and dignity of all employees.