EHRC clarification on SC judgement - workplaces

[ArabellaScott]

https://www.equalityhumanrights.com/media-centre/news/clarification-workplace-facilities-added-interim-update

Clarification to interim update:

'In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. Where changing facilities are required under the regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities such as separate lockable rooms.

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

In workplaces and services that are open to the public where separate single-sex facilities are lawfully provided:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided'

IMO they need to write this more clearly:

'Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. '

Each individual facility needs to be in a separate room, if its to be mixed sex. I.e. each toilet and washbasin, each shower, each changing room. It may sound pedantic, but this level of detail and clarity appears to be necessary.

Fox Killer is threatening them with Judicial Review and the case includes reference to the Workplace (Health and Safety) Regulations 1992.

"“In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside.”

https://goodlawproject.org/wp-content/uploads/2025/05/Letter-to-the-Equality-and-Human-Rights-Commission-16-May-2025_Redacted.pdf

Thanks I had that.

From the OP it appears there was a clarification on this. But when I go to the link in the OP there is no real information and the only link on there is to a pdf file which wont open as it is set to open as print.

Totally confused.

Michael Foran, in his response to the EHRC consultation, suggests that reference should be made to this legislation in the section re Justification for Separate and Single Sex Services and that meeting these legal obligations will always be a proportionate means of achieving a legitimate aim for the purposes of the EA.

https://substack.com/@michaelforan/note/p-166384230?r=clrob

Hopefully, this link to Michael Foran's response will work. I found it very useful.

I think the link POW has sent you IS the updated update. It opens from the link that Arabella gave us.

In version 1 transwomen must use the men's.

In version 2, transwomen must use the men's, or the 'gender neutral' or 'unisex' facilities. The 'victory' JM is claiming is that the EHRC are saying that unisex/gender neutral loos can be used by either sex. That's it.

(1).
“In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.”

Its revised position, issued after Good Law Project served its claim form, abandons that assertion and instead concedes that
(2) “In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside.”'

Ironically, I found the updated, interim, meanwhile, guidance clarification quite confusing.

I'm afraid I can't help as I don't really know what's going on myself ...

I haven't done the Consultation yet, but I think EHRC are going to have to be clearer than this. We have way better understanding than the average Jo, and yet we are struggling with their wording.

Right. But that's not what TRAs want, is it? They want to use the facilities of the opposite sex, not unisex facilities. That's outing/ othering/ literal violence. Can JM spin that as a win to TRAs or do they just see him crowing and not look at the details and assume he's got them what they want?

To be honest I was assuming the 'win' was stopping women having single sex facilities, as in the win was spite against women- yay we're stopping women having a women's changing room as they're all single use now! Possibly I am too uncharitable.

Can JM spin that as a win to TRAs or do they just see him crowing and not look at the details and assume he's got them what they want?

I suspect Jolyon might think TRAs are really gullible, and he's not wrong about that.

To be honest I was assuming the 'win' was stopping women having single sex facilities, as in the win was spite against women- yay we're stopping women having a women's changing room as they're all single use now! Possibly I am too uncharitable.

Nope, not too unchartitable. That is exactly my thought too. We have to be punished for daring to thwart them

Let GLP spin this as a win. It's not important. The purpose here is not to "win" or make sure the other side "loses", it's to make sure the law is obeyed going forward. That's the only thing that matters. Remember the art of diplomacy is letting the other person have it all your own way.

On the subject of "should" vs. "must": I have an idea that a code of conduct (guidance) isn't supposed to say "must" because otherwise it inserts itself in place of the relevant law. Writing the guidance is an act of interpretation, and therefore could in theory be wrong. "should" allows for that. Any legal scholars know if this is correct?

Good Law Project is aware of one case, some days after the For Women Scotland case, where a woman was told by her employer that she needed to start using the men’s toilets and she went home and attempted to take her own life.

Shameful to see them exploiting a suicide attempt - if it even happened - to push their agenda. Emotional blackmail as per usual.

Even if a man is struggling with his mental health to the point of wanting to off himself, it is of course no reason to let him use women's toilets.

The original version of the guidance was produced in full in the EHRC lawyers’ response to the GLP.

https://goodlawproject.org/wp-content/uploads/2025/06/2025.06.13-REDACTED-Response-to-Letter-of-Claim-1.pdf

All the clarification has done is pull the last bullet point in the section headed ‘In workplaces and services that are open to the public’ in the original interim guidance and include it in the ‘workplaces’ section, and add that it comes from the Workplace Regs.

I do note that the new interim guidance uses the word ‘must’ in the section on provision of separate changing facilities for men or women unless the facilities are separate rooms lockable from the inside.

Personally, I think it might have been clearer to use the wording from the ACOP:

For toilets:

Separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from the inside.

And for washing facilities:

Separate facilities are provided for men and women, except where and so far as they are provided in a room the door of which is capable of being secured from inside and the facilities of each room are intended to be used by only one person at a time.

I thought that too.

Wtf? This update is clear as mud.

So... are single sex toilets a requirement in the workplace?

IANAL
My reading of Sabrina's HSE screenshots is 'no'. Single-person-use rooms lockable from the inside are a suitable alternative and can be used by either men or women.
However, HSE also gives minimum numbers of facilities to be provided for your workforce size. So where workforces are larger it might be difficult to provide sufficient toilets without having some separate-sex provisions in cubicles.

(Plus new-builds and changes to existing builds have Approved Document T to contend with, which prioritises single-sex toilets unless space precludes this)

No. The Workplace (Health, Safety and Welfare) Regulations 1992 state that toilets must be.

(c) separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside.

www.legislation.gov.uk/uksi/1992/3004/regulation/20

The 1992 Workplace Regulations state that there must be toilets while the Health & Safety Executive mandates how many toilets must be provided given the size of the workforce & it's not many e.g. 5 toilets for 100 employees.

https://www.hse.gov.uk/contact/faqs/toilets.htm

There is a push to pretend that its a binary choice -either mixed sex overtly; or pretend -single sex-plus people who want to use the opposite sex, with insinuation that there are fewer of the latter and assumption women would opt for the latter.

I suspect overt mixed sex would be marginally preferable and safer.

But best option is genuinely single sex plus mixed sex for any who fall outwith.

Pragmatically most provision is sex segregated and most employers will leave it that way.

That's my reading of it too.

For toilets, they have to be in a separate enclosed room that can be secured from the inside to be unisex. The usual type of toilets where it's several cubicles with a separate bank of wash basins in one room would need to be single sex.

For washing facilities, it would have to be a separate enclosed room that can be secured from the inside and intended for use by one person.

For workplace changing rooms, the ACOP states:

Without prejudice to the generality of paragraph (1), the facilities mentioned in that paragraph shall not be suitable unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety and the facilities are easily accessible, of sufficient capacity and provided with seating.

Any changes from the existing single sex provision that most employers will have are going to be expensive, so I suspect there might just be the odd new unisex room provided where space (and funds) permit.

The minimums mandated are small and it is the case that cubicles are way more efficient than individual rooms. The latter are bigger and include a sink and mirror so they can get used by (no judgement!) cyclists getting changed, people fixing hair or make-up or cleaning teeth and, in the case of one place I worked, a guy did a wet shave in ours every morning.
Separate-sex cubicles give more bang for buck because people can do all those things in the sink area without preventing toilet access. A sensible employer does not want people wasting time waiting for loos to be free or grumbling about the provision. (Aside from the good arguments about safety and cleanliness).

Some of this is relevant to adults as well as children:

MIXED SEX TOILETS IN WALES' SCHOOLS
A report by Merched Cymru

What’s the problem with mixed sex toilets?

There is plenty of evidence about the problems of mixed sex facilities (more below). Mixed sex toilets raise significant issues:

• Hygiene – fully enclosed toilet cubicles are harder to clean and ventilate. Without urinals, boys will make more mess. Girls need access to sanitary bins.

• Safety – fully enclosed cubicles pose a safety risk. A child who faints or harms themselves is harder to help. Violence or bullying can take place in a fully enclosed space. In an environment where sexual harassment and even assault are sadly commonplace in schools, sharing toilets with boys exposes girls to unacceptable levels of risk.

• Privacy and dignity – boys and girls both have a right to privacy and dignity in a single sex space when using the toilet

Not compliant with the law

The Education (School Premises) Regulations 1999 state that children over the age of eight must be provided with single sex toilet facilities. Cubicles with shared handwashing arrangements do not meet legal requirements, even if the cubicles themselves are designated male and female, and even if the cubicle is fully enclosed, with a floor-to-ceiling door.

Many schools offer additional, fully self-contained unisex/gender- neutral toilets with handwashing facilities. This is fully compliant with the law, and a good alternative option for children who don’t feel comfortable using the toilets available for their sex.

Any change to the regulations would require a full public consultation and an examination of the evidence for any proposed change – something that is completely lacking so far.

https://merchedcymru.wales/wp-content/uploads/2024/01/Merched-Cymru-Toilets_FINAL.pdf

Something that I think helps clarify what it is being referred to in that report is use of the term "toilet blocks". It is not a common term now but it is far clearer than an ambiguous term like "facilities" when "toilet block" is what is meant.