Workplace facilities and trans employees: what employers need to know

Since our last update, the law on workplace single-sex facilities and how trans employees should be accommodated has changed significantly following two major court decisions.

We’re also seeing an increasing number of discrimination claims in this area. In light of recent case law, organisations are encouraged to review their changing and bathroom arrangements if they haven’t recently done so, to ensure they meet legal requirements for their workforce.

The legal framework

Employers have long been required by the Workplace (Health, Safety and Welfare) Regulations 1992 to provide “suitable and sufficient” toilet, washing and, where needed, changing facilities for their workforce. The Regulations require separate facilities for men and women or, alternatively, facilities in individual lockable rooms for use by one person at a time.

At the same time, section 7 of the Equality Act 2010 protects employees against discrimination on the grounds of gender reassignment. This protected characteristic applies to anyone who is “proposing to undergo, is undergoing, or has undergone a process … for the purpose of reassigning the person’s sex”.

The tension between the obligation to provide single-sex facilities and the obligation not to discriminate against trans employees has left many employers uncertain about their position. A series of landmark court decisions has helped clarify the law, but its practical implication still requires careful consideration.

What has changed?

In April 2025, the Supreme Court ruled in For Women Scotland v Scottish Ministers that “sex”, for the purposes of the Act, means biological sex. Under the Act, a trans woman is a biological male and a trans man is a biological female, regardless of whether they hold a Gender Recognition Certificate.

In February 2026, the High Court in Good Law Project v EHRC confirmed how this applies in the workplace. Under the Regulations, employers must provide separate toilet and washing facilities for men and women, with ‘men’ and ‘women’ also referring to biological sex. The alternative is to provide facilities in individual lockable rooms for use by one person at a time, which can be used by anyone.

Crucially, complying with the Regulations isn’t the end of the story. Employers must also comply with the Act’s prohibition on gender reassignment discrimination. The two obligations sit alongside each other and both must be met.

What should employers do in practice?

Providing biological single sex-facilities only may be compliant with the Regulations, but it does leave employers exposed to the risk of gender reassignment discrimination claims.

Where possible, employers should also provide additional gender-neutral or single-occupancy, lockable facilities. These can lawfully be used by anyone and are the simplest way to accommodate trans employees without risk of discrimination claims.

However, employers should also consider how these additional facilities are labelled. Branding them ‘disabled’ may cause unnecessary distress and can easily be avoided through more inclusive signage.

The court emphasised that the law sets a “floor, not a ceiling” and that employers can, and should, go beyond the bare minimum.

Common pitfalls

There are a number of traps that employers could fall into in this area:

• Directing trans employees to facilities matching their biological sex. The High Court was clear in the Good Law Project case that a trans man or woman can’t be required to use facilities based on biological sex. Doing so could amount to unlawful gender reassignment discrimination under the Act
• In contrast, in For Women Scotland, the Supreme Court noted that excluding trans individuals from facilities that align with their biological sex may be lawful, provided it’s a proportionate means of achieving a legitimate aim
• Employers must consider these points together. The overarching principle is that trans employees must not be left without any provision. Policies that inadvertently result in this are unlikely to be proportionate and may amount to discrimination on the grounds of gender reassignment
• Allowing unrestricted access based on gender identity. Following For Women Scotland, a female facility used by a biological male ceases to be single sex. An employer permitting this would not be complying with the Regulations.

The guidance from the court is that employers should avoid taking a rigid or ideological stance in either direction and instead apply “common sense and benevolence”.

Looking ahead

This area of law is rapidly developing, with many cases awaiting hearing or appeal. The Equality and Human Rights Commission’s revised Services Code of Practice also remains pending ministerial approval.

Until it’s published, employers should take specialist advice before making changes to facilities arrangements, subject to the existing principles outlined above.

This article was co-authored by William Lewington, Trainee Solicitor in HCR Law’s Employment, HR and Immigration team.