EHRC Single-Sex Guidance: Legal, Operational and Ethical Challenges for Employers

Recent UK Supreme Court guidance (For Women Scotland v Scottish Ministers, April 2025) held that in the Equality Act 2010 “sex” means biological sex​. In practical terms, this means a “woman” is legally a person born female, and a transgender woman (male-born) does not change sex for purposes of the Act​. In response, the Equality and Human Rights Commission (EHRC) issued an interim update on 25 April 2025.

This non-statutory guidance (not legally binding) explains how single-sex spaces should be managed given that ruling. It is expressly an explanatory update, with the EHRC stressing that employers “must follow the law” as clarified by the Supreme Court​. In other words, existing Equality Act protections remain in force, including protection from gender reassignment discrimination – the guidance itself does not remove those protections​.

What the EHRC Guidance Says

The EHRC guidance primarily tells employers and service providers how to interpret the Act now that “woman” and “man” are defined by birth sex. In workplaces, the update reiterates existing law: employers are required to provide sufficient single-sex toilets, changing and washing facilities for men and women as needed​. Crucially, it states that trans women (biological men) should not use women’s facilities, and trans men (biological women) should not use men’s facilities. In fact, the guidance goes further: in “some circumstances” the law even allows preventing trans women from men’s and trans men from women’s spaces​.

The net effect is that under the update, a trans person would have to use only unisex (single-occupancy) facilities. Critics note this could amount to outright segregation – if gender-neutral toilets are unavailable, trans employees “simply cannot go to the bathroom” in any single-sex facility​.

At the same time, the EHRC addresses mixed-sex (all-gender) options. It observes that service providers are not required by law to operate on a single-sex basis – they may offer “mixed-sex” or gender-neutral facilities – but warns that offering only mixed-sex toilets could be “indirect sex discrimination” against women​. In practice, this means gyms, pools, clubs and other venues might feel compelled to maintain some single-sex sections rather than go entirely mixed-gender​. In sum, the guidance urges employers: maintain single-sex spaces for each biological sex and provide alternative mixed/neutral options so trans staff “are not put in a position where there are no facilities for them to use”​.

Legal Implications for Employers

The guidance aligns with the Supreme Court’s reading of the Equality Act, but it also highlights awkward legal tensions. The Act protects trans people under “gender reassignment” and outlaws harassment or discrimination on that ground. For example, a trans employee could argue it is discriminatory to force them to use a separate facility when they pass as their gender identity. Indeed, barristers warn that the guidance itself could clash with existing law: an employer who excludes a trans man from the men’s room might breach the trans man’s right not to be treated unfavourably for gender reassignment​.

Conversely, if an employer ignores the guidance and simply allows any employee in any bathroom, they could face complaints under the sex discrimination provisions. In short, as a leading HR lawyer observes, “there are risks of sex discrimination claims if employers don’t follow the EHRC guidance, but no practical answers as to how to mitigate the risks of gender reassignment discrimination claims” from following it​.

Legally, it’s worth noting the Equality Act has no dedicated section on private single-sex toilets in workplaces​. The Act’s single-sex exemptions generally apply to service providers, not to employer-only facilities. This gap means employers must carefully balance the Supreme Court’s definition of “sex” with the trans-inclusive spirit of the Act’s other provisions.

In practice, the lack of statutory clarity – and the fact that the EHRC update is only guidance – means that no employer faces immediate enforcement for following or ignoring it. Nevertheless, all organizations are still bound to the Act’s core duties. The EHRC itself reminds duty-holders to “take appropriate specialist legal advice” and follow the law​. As one expert put it, the Supreme Court’s ruling and the EHRC update simply mean “people [at work] use the facilities of their biological sex” – but how exactly that is enforced on the ground remains undefined​.

Practical and Operational Challenges

The guidance raises many day-to-day dilemmas. Employers must decide how, if at all, to implement these recommendations. For example: who decides if a trans woman (biological man) “passes” enough to be barred from a women’s restroom? The guidance mentions “circumstances” and “reasonable objections,” but offers no clear decision-making process​.

In other words, to exclude a particular trans person from a facility may require other staff to become aware of that person’s trans status. Advocates warn this risks involuntary outing and privacy violations (breaching ECHR Article 8)​. A discrimination lawyer notes it would be “horrific” if any policy forced employees to announce or hide their identity in order to use basic facilities​.

Another practical issue is signage and facilities. The guidance implies that the simplest solution for trans staff is to use a private or unisex restroom. Many modern offices have added all-gender toilets marked with gender-neutral signage (as above) to accommodate everyone.

However, retrofitting buildings can be costly. Some organizations may resort to designating an existing single-occupancy toilet as “all-gender” and insisting all others be split by sex. At the same time, removing a women’s or men’s room entirely risks upsetting other staff. The EHRC update suggests auditing facilities and creating mixed-sex options where possible​, but it offers no fast fixes. HR teams will need to juggle legal advice, employee privacy and workplace safety. For instance, one minister even quipped there won’t be “toilet police,” but acknowledged that the “logical consequence” of the ruling and guidance is that staff stick to the restroom for their sex​.

Ethical and Inclusion Considerations

These operational decisions carry ethical weight. On one side is the goal of inclusion: ensuring transgender employees feel respected and protected. Forcing a trans person out of their facility choice can be deeply stigmatizing. Trans advocates say the guidance is a “tool of humiliation” that could embolden harassment​. If a trans employee suddenly stops using their usual restroom, co-workers will likely notice – effectively outing the individual. Campaigners warn this violates dignity and privacy. Moreover, insisting on biological definitions can clash with workplace values of diversity and support for vulnerable employees.

On the other side is the argument of protecting privacy and safety in gendered spaces. Some employees (especially women) feel anxious about sharing single-sex spaces with male-born strangers, even if they identify as women. Supporters of the guidance argue it follows the law and reassures those concerns. For example, the Prime Minister has said the approach is “to protect single-sex spaces based on biological sex” while also treating trans people “with respect and dignity”​. Similarly, a government minister suggested most businesses already offer “disabled” or single-use restrooms that any staff member can use, implying those are the practical solution for trans colleagues. These supporters stress clarity and safety, though critics say this framing fuels fear.

In sum, employers face an ethical balancing act. They must uphold legal rights and foster an inclusive culture. Strictly enforcing the guidance could alienate LGBTQ+ employees and harm morale. Ignoring it could expose the organization to legal challenges or internal conflict. The most pragmatic path is to prioritize privacy and mutual respect: provide alternatives (gender-neutral facilities, for example) so that no one has to use a restroom they find uncomfortable, and handle any concerns on a case-by-case, confidential basis​.

Controversy: Critics vs Supporters

Reaction to the guidance has been sharply divided. Critics – including trans rights groups, many Equality campaigners and some politicians – denounce the update as “rushed” and “ill-considered”​.

The Green Party co-leaders called it an “impractical” guide that will put trans people at risk of discrimination or abuse, and urged the EHRC to withdraw it until wider consultation occurs​.

Trans organizations have labeled the advice “appalling” and warned it explicitly bans trans people from all gendered toilets​. Many experts emphasize that the guidance is not law – an interim clarification – and that the underlying Equality Act still protects trans staff from discrimination​. They argue the update could inadvertently prompt unlawful policies or litigation, or chill inclusive practices in workplaces.

Supporters, on the other hand, include some women’s rights advocates and government figures who praise the legal clarity. Gender-critical campaigners have hailed the Supreme Court decision and EHRC advice as a victory for the safety of biological women in single-sex spaces​. The government’s position is that this ruling brings “clarity” to long-standing confusion. Business Secretary Kemi Badenoch told ITV that enforcing the new rule is “not as complex as it’s often made out to be,” since nearly every office has at least one unisex “disabled” toilet that trans people can use​. In practice, supporters say, few people will be physically prevented from accessing restrooms; the guidance merely advises against “encouraging” trans employees to use opposite-sex facilities in ways that might displease others. They also highlight that this advice is non-binding: employers are not suddenly facing fines for ignoring it. In short, proponents portray it as a reasonable interpretation of the law, not a hard rule.

Non-Binding Guidance and Compliance

It cannot be overstated: the EHRC update is guidance, not new legislation. The Commission explicitly notes that it “is not law and is not legally enforceable”. Its purpose is advisory – to help organizations interpret the Supreme Court’s judgment until a fully updated Code of Practice is finalized. The EHRC has said it will shortly undertake a public consultation and aims to present a final Code of Practice to ministers by the end of June 2025​.

In the meantime, the legal duties on employers have not changed: the Equality Act remains effective immediately as clarified by the court, and all employers must abide by it​.

For HR leaders, the non-statutory status means this guidance should inform policy but not be taken as iron-clad law. Nonetheless, it signals the regulator’s view of compliance. Ignoring it entirely could still lead to complaints or negative scrutiny. Conversely, using it to draft rigid rules might provoke other legal claims. From a risk-management perspective, the guidance heightens urgency to review bathroom and changing-room policies.

It essentially puts employers on notice: legal interpretations are shifting, so companies should evaluate how they will adapt while monitoring evolving law. Weighing these factors is tricky, but standing ready with a clear, lawful approach is prudent. As one EHRC commissioner noted, the update is meant to ensure “the dignity and safety of everybody” – meaning organizations must find solutions that respect all employees​.

Recommendations and Call to Action

Business leaders and HR teams should act now to align their inclusion strategy with both the new legal context and core equality principles. Key steps include:

• Audit facilities and policies. Inventory all restrooms and changing areas. Ensure you have the legally required number of single-sex facilities​ and identify potential gender-neutral or private spaces. Converting a few single-occupancy restrooms to all-gender use can provide options for anyone without forcing others to change their routines.

• Communicate clearly. Update your employee guidelines to reflect current law: explain that, under the Act, facilities are designated by birth sex but that alternative options are available. Make it clear that the goal is accommodation, not punishment, and that requests will be handled confidentially. Provide visible signage (including gender-neutral signs) where needed to avoid confusion.

• Train managers. Educate HR and line managers about the change. Emphasize that there is no “policing” of toilets – rather, individuals should feel free to use the facility that corresponds to their legal sex or the private option. If concerns arise (e.g. a woman uncomfortable with a particular colleague’s presence), handle them case by case with empathy, not automatic exclusion.

• Engage stakeholders. Where appropriate, consult with employee groups (including women’s forums and LGBT+ networks) to develop nuanced solutions. Their input can help craft policies that protect privacy and safety without alienating anyone. Remember, many lesbian and women’s organizations support trans inclusion​, so dialogue is key.

• Seek legal guidance. The situation is unsettled. Obtaining specialist employment law advice can clarify your duties and options. Consider preparing for a small change pilot (e.g. a few re-designated restrooms) and gauge feedback. Stay alert to the EHRC consultation and final Code of Practice, and be ready to adjust once the law is formally settled.

• Reinforce company values. Reiterate that your organization values dignity and respect for all staff. Frame any changes as part of a commitment to a safe, inclusive workplace. Leadership should make it clear that hateful or harassing behaviour of any kind (including transphobic comments) will not be tolerated.

Business leaders now face a choice: react defensively or adapt proactively. The guidance underscores that traditional gender policies may no longer be optional, but it also reminds us that all equality protections still apply​. Companies that align their diversity strategy with the law – rather than viewing them as opposing forces – will mitigate risk and strengthen trust.

Conclusion

From a DEI perspective, this interim guidance is a reminder that law and inclusion must go hand in hand. On the one hand, employers must respect the Supreme Court’s interpretation of the Equality Act 2010; on the other hand, they cannot abandon their commitments to fairness and dignity. The EHRC update itself warns against hard-and-fast restrictions and encourages mixed facilities where possible​. In practice, the best response is pragmatic empathy: ensure everyone has access to appropriate facilities while avoiding practices that single out or shame any group.

Ultimately, business leaders should use this moment to reaffirm that legal compliance and inclusivity are complementary. Review your policies, engage your teams, and prepare to adapt as new guidance emerges. By doing so, you can protect your organization from legal pitfalls while sending a clear message that a culture of respect – for women and trans employees alike – remains a priority. Now is the time to act: align your HR practices with both the letter of the law and the spirit of equality.

And if you need a hand with that, Z-Twist can help. Reach out to us and we will be able to put together a plan of action that addresses all of these needs together.