Consequences of ls v NHSE England court win, discuss & explore the detail of judgement, what this means for other cases and institutions

[SingleSexSpacesInSchools]

https://didlaw.com/ls-v-nhse-england

Don't want valuable discussion of what this means and the detail of the case judgement to get lost in the other (very valid) threads.

Yesterdays case feels quote significant, would like to explore what it means!

1 - GLP fuck up again - their failed case now seems to be helping the very argument they were trying to defeat. GLP challenged the EHRC’s post-Supreme Court position on single-sex spaces, lost, and the High Court confirmed that employers can comply with workplace toilet rules by providing female facilities for biological women and male facilities for biological men. That judgment has now been quoted in LS v NHS England to support the point that there is no legal right for a trans-identifying male employee to use women’s facilities.

2 - NHS England admitted in court that women are disadvantaged by this kind of policy.

They did not argue that women were being silly, hateful or irrational for objecting to males in female-only spaces. They accepted that allowing trans women into women’s facilities puts women, Muslim women and women with PTSD from male violence at a particular disadvantage.

They knew women were disadvantaged, but pushed ahead anyway

Any more?

Huzzah! Many congratulations to the brave claimant and to her excellent legal team What a cheering read. Thank you OP.

The impact of this judgment is that every woman in UK has rights to single sex spaces at work for toilets and changing rooms (where required for work purposes).

Two higher court judgments combined bind all employers in the UK (inc NI where EA doesn’t apply) to ensure that workplace toilets, showers and changing rooms are for women only. Not for men who identity as women.

Fail to do this and you are discriminating against women.

I think I’ll do a draft letter people can use to send to their employers.

Do you think Ms Phillipson is waiting for more court cases to show the way rather than publish the government's guidance?

I hope it means the end of court cases. Especially against state funded organisations like NHS and councils.

Two things from the judgement that stand out to me are:
'policing' toilets - just because some people may not obey a rule is not an excuse not to have one, and to make it company policy
[something we've pointed out on this thread many times]
and
'proportionality' in terms of how much has to be done to reach the legitimate aim of not discriminating against a protected group.

I've only skimmed through the judgment, but I think it is a very important statement of The law rather than Stonewall Law.

Hopefully this will be important:
“We accept that it would not be possible for the respondent to guarantee that the single-sex toilets would only be accessed by women. However, this does not mean that the respondent could not take reasonable steps to ensure that such a policy was complied with by its employees and visitors, for example by making it a disciplinary offence to breach any employee policy or by requiring visitors to comply with appropriate policies.”

The NHS, civil service, universities and all larger business should find it simple to offer some mixed sex spaces for those wishing to share with the opposite sex while maintaining single sex spaces for men and women, making it part of their employee policy that single sex changing / toilets must not be used by the opposite sex.

Very good points about the policing had not spotted that properly!!

We need to remember, welcome as the judgement is, that it is not binding in law as a tribunal appeal would be. However, hopefully it will encourage other employers not to FAFO.

Please, please draft the letter.

My council (CEO and Leader) needs to see tailored version of it. ‘Will you please confirm that …’ sort of thing. I know one of the legal team there and I think they’d welcome it, because a lot of the councillors in charge ain’t listening.

But the binding law already exists, above the tribunals? So these tribunals can’t go any other way now.

Updated Draft Letter (for Great Britain / England & Wales)

[Your Full Name]
[Your Job Title]
[Your Department, if applicable]
[Your Contact Details]

[Date]

[Employer’s Name / HR Manager’s Name]
[Company Name]
[Company Address]

Subject: Request for Written Confirmation of Policy on Use of Single-Sex Toilets, Changing Rooms and Showers [EDIT AS APPROPRIATE]

Dear [HR Manager’s Name / Sir or Madam],

I am writing to seek written confirmation of the Company’s policy regarding the use of male and female toilets, changing rooms and showers in our workplace.

Recent case law makes clear that employers can lawfully adopt and apply a policy that female facilities (toilets, changing rooms and showers) are available only to biological women and male facilities only to biological men, and that doing so satisfies the requirements of the Workplace (Health, Safety and Welfare) Regulations 1992.In the High Court case of R (on the application of the Good Law Project and others) v EHRC [2026] EWHC 279 (Admin), Mr Justice Swift held (at paragraph 40):

“If the obligation under regulation 20 is as I have concluded, an employer who provides the lavatories required in the rooms required, and who in good faith adopted and applied a policy that the female lavatories were available only to biological women and the male ones only available to biological men, would do what is required by the Regulations.”

This passage was quoted with approval in the recent Employment Tribunal judgment in LS v NHS England (Case Number: 1802318/2024). In that case, the Tribunal upheld the claimant’s complaint of indirect sex discrimination arising from the employer’s policy of permitting biological males who identify as women to use female toilets, changing rooms and showers.

The Tribunal’s findings confirm that failure to provide and maintain genuine single-sex facilities in accordance with the Workplace Regulations constitutes unlawful discrimination on the grounds of sex. The employer in that case now faces a remedies hearing at which significant damages are expected to be awarded. In LS v NHS England, the Tribunal expressly addressed the common situation where employers rely on external guidance:

“170. [The employer's representative] submitted that the respondent, along with many other employers, was applying the Act as it understood it at that time. [The employer] gave evidence that the respondent relied on the advice of external bodies, including Stonewall, UNISON and other trade unions, in addition to feedback from its staff network. [...]

171. However, reliance on contemporaneous guidance or good practice advice cannot justify an incorrect interpretation of the law. Employers must seek their own legal advice and ensure that they are applying the law correctly.”

In light of this developing case law, I respectfully request that the Company confirm in writing whether it has adopted (or intends to adopt) and will apply a policy that:

Female toilets, changing rooms and showers are designated for and available only to biological women; and

Male toilets, changing rooms and showers are designated for and available only to biological men.

I believe such a clear policy provides certainty and protection for all staff, respects the privacy and dignity of employees (particularly women), and ensures full compliance with the 1992 Regulations and the Equality Act 2010 as interpreted by the courts. I would be grateful to receive this confirmation at your earliest convenience. I am happy to discuss this further if required.

Yours sincerely, [Your Full Name]

I agree re the importance of this case.

I know it has been touched on before, but what will stop captured organisations from simply making all their toilet provision mixed sex, in the light of this, to avoid having to say no to the men wanting to use the womens? It is my understanding that if single sex facilities are provided, organisations must direct people to use the facility that matches their sex. But organisations don't have to provide single sex facilities do they? They can just have lockable cubicles for everyone?

Obviously there is a cost to this, but I can see some organisations preferring to do this rather than saying no to the trans identified men.

Not quite - the law applied here is law from the High Court. It is binding law.

What it goes on to say is self evident. However if there is any uncertainty it will be cleared up when Kelly (toilets) and Peggy (single sex changing rooms) are on appeal.

IANAL - what I can see as a layman in what I've read and understood so far:

If it is harassment to women to permit men with trans identities to use single sex facilities - on the grounds that this makes those spaces untenable etc for those women - then to provide only mixed sex facilities is likely to have the same legal finding. As the SCJ of a year ago, to not provide single sex facilities in addition to mixed sex may be discrimination against women, and this would appear to push and clarify this further.

When clearly framed as harassment, to permit some staff to crack on with harassing other staff because <helpless shrug> is going to have about the same impact as permitting some of your employees to harass others on grounds of their colour or faith or disability. Obviously, you get a grip on it through clear boundaries, clarity in job descriptions, and disciplinary process if necessary, or you get out the big payout and the awful PR for the member of staff that took you to court.

Draft Letter (for Northern Ireland)

[Your Full Name]
[Your Job Title]
[Your Department, if applicable]
[Your Contact Details]
[Date]

[Employer’s Name / HR Manager’s Name]
[Company Name]
[Company Address]

Subject: Request for Written Confirmation of Policy on Use of Single-Sex Toilets, Changing Rooms and Showers

Dear [HR Manager’s Name / Sir or Madam],

I am writing to seek written confirmation of the Company’s policy regarding the use of male and female toilets, changing rooms and showers in our workplace. Recent case law makes clear that employers can lawfully adopt and apply a policy that female facilities (toilets, changing rooms and showers) are available only to biological women and male facilities only to biological men, and that doing so satisfies the requirements of the Workplace (Health, Safety and Welfare) Regulations (Northern Ireland) 1993.

In the High Court case of R (on the application of the Good Law Project and others) v EHRC [2026] EWHC 279 (Admin), Mr Justice Swift held (at paragraph 40):

“If the obligation under regulation 20 is as I have concluded, an employer who provides the lavatories required in the rooms required, and who in good faith adopted and applied a policy that the female lavatories were available only to biological women and the male ones only available to biological men, would do what is required by the Regulations.”

This passage was quoted with approval in the recent Employment Tribunal judgment in LS v NHS England (Case Number: 1802318/2024). In that case, the Tribunal upheld the claimant’s complaint of indirect sex discrimination arising from the employer’s policy of permitting biological males who identify as women to use female toilets, changing rooms and showers. The Tribunal’s findings confirm that failure to provide and maintain genuine single-sex facilities in accordance with the Workplace Regulations constitutes unlawful discrimination on the grounds of sex. The employer in that case now faces a remedies hearing at which significant damages are expected to be awarded.

Although that case arose in England, the relevant provisions in the 1993 Northern Ireland Regulations are materially identical, and the principles regarding single-sex provision and sex discrimination apply equally here. In LS v NHS England, the Tribunal expressly addressed the common situation where employers rely on external guidance:“170. [The employer's representative] submitted that the respondent, along with many other employers, was applying the Act as it understood it at that time. [The employer] gave evidence that the respondent relied on the advice of external bodies, including Stonewall, UNISON and other trade unions, in addition to feedback from its staff network. [...]

171. However, reliance on contemporaneous guidance or good practice advice cannot justify an incorrect interpretation of the law. Employers must seek their own legal advice and ensure that they are applying the law correctly.”

In light of this developing case law, I respectfully request that the Company confirm in writing whether it has adopted (or intends to adopt) and will apply a policy that:

Female toilets, changing rooms and showers are designated for and available only to biological women; and

Male toilets, changing rooms and showers are designated for and available only to biological men.

I believe such a clear policy provides certainty and protection for all staff, respects the privacy and dignity of employees (particularly women), and ensures full compliance with the 1993 Regulations and equality legislation as interpreted by the courts. I would be grateful to receive this confirmation at your earliest convenience. I am happy to discuss this further if required.

Yours sincerely,

[Your Full Name]

For those of you who don't wish to send a letter in your own name please consider using your Speak Up or Whistleblowing policies to raise concerns anonymously.

As it is a criminal offence to breach Workplace Regs (all across UK) and it is in addition a threat to health and safety not to comply, and a failure to comply with a legal obligation - this is a valid protected disclosure.

You can say you are a concerned women however the hostile enviroment and job losses of women who express sex realist views have meant that you are too scared of negative consequences to be able to speak freely. That in itself is in contravention of your employers equality diverstiy and inclusivity efforts.

In the main you need to reasonably believe that the disclosure is being made in the public interest and that malpractice in the workplace is happening, has happened or will happen.

Disclosures which can be characterised as being of a personal rather than public interest will not be protected.

The types of malpractice the law covers are:

• criminal offences
• failure to comply with a legal obligation
• miscarriages of justice
• threats to people's health and safety
• damage to the environment

You are welcome - happy to edit / add as necessary. Every employer in the UK should get one. Well done Faye!

Yes, well done and thank you, Faye! x

Thanks all! One query, near the top of this letter it says case law says workplaces can adopt..... And it would satisfy the law. Can it be made any stronger? It is worded to seem optional and as if stonewall law is therefore a possible alternative valid interpretation.

Yes! Many of us are paying twice, once through taxes and again through crowd-funders.

Very important. Gives the lie to nonsense about toilet police and genital inspections.

1.There was an arcane point about indirect discrimination as to a combination of more than one protected characteristic (eg muslim plus female) not being proscribed. LS could have prevailed on this point alone if they proved that both male and female muslims are disadvantaged relative to non-muslims by the provision of (only) mixed-sex services, but they didn't present the necessary evidence.

2.If they had prevailed on religious discrimination, the general tenor of the judgment suggests that this aspect could still have been mitigated by providing sufficient enclosed single-user facilities that muslims, rather than transgender people, could use, because of the numbers involved.

3.(A tribunal found against claimant in Kelly v Leonardo based on numbers. It was an unusual workplace, that had very few women, and lots of transwomen and enclosed single-user facilities, so Kelly was not deemed unjustifiably disadvantaged by having to use them.)

4.However, KELLY is superseded by the High Court (R on application by GLP et al v EHRC) finding that WR1992 require sufficient single-sex multi-user provision, and this was relied on in LS v NHS.

5.In addition, ET in LS v NHS found, based on experts' fact evidence, that mixed-sex only provision disadvantages all women, relative to men. (There was a similar finding in the Darlington case, but the tribunal in KELLY found the other way, and ignored WR1992 altogether.)

6.The tribunal then essentially pointed out that it would be absurd to potentially cram all the women into the enclosed single-user space whilst a handful of TWs had the run of the ladies etc.

7.This isn't binding, and it would be great to get it confirmed by the High Court. Because point 5. is ultimately based on fact evidence, it would be hard to overturn.

8.What intrigues me is that point 5. seems to apply irrespective of how the women feel about it. They could be wall-to-wall handmaidens, but, objectively, they are suffering illegal discrimination.

9.Also, although situations vary, this seems to support a developing appreciation that mixed-sex only provision is always illegal sex-discrimination, or at least that the onus is on the provider to prove otherwise. This applies to service providers as well as employers and is relevant to the EHRC guidance. The guidance already suggests that this is an issue to be addressed, but would be strengthened by confirmation from the High Court (this wasn't addressed by GLP v EHRC because that was not about a specific situation, and the judge wisely declined to make a universal finding about something that might turn out to be fact-dependent in some unforeseen way).

Stick in a would. Your HR and legal team won't quiblle. I am quoting where possible from the judgment.