61. Whether different treatment is also less favourable treatment is, therefore, a qualitative question. In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled “women”.)
I was corrected on another thread when I called this 'unfortunate musings by the judge' because it was skim-read and seized upon and I wished he hadn't said it. It seems he was responding to a specific point so it was just pointless what-if-ery!
there would, in principle, be scope for a strong argument -
what would your old head of chambers make of that, HenriettaSwanLeavitt?
English for 'yeah ok you can argue that but don't expect me to agree with it'😄