The EHRC’s revised guidance on ‘For Women Scotland v The Scottish Ministers’

As promised, the Equality and Human Rights Commission has updated its guidance on the ‘For Women Scotland v The Scottish Ministers’ judgment.

In For Women Scotland v The Scottish Ministers, the Supreme Court had the task of defining the meaning of ‘man’, ‘woman’, and ‘sex’ in the context of the Equality Act 2010. The question was whether a person who recognises their gender as female and possesses a full Gender Recognition Certificate could be considered a ‘woman’ for the purposes of the Equality Act 2010.

The Supreme Court clarified that for the purposes of the Equality Act 2010, these terms are based on biological sex. This means that transgender individuals will be included within the definition of their birth sex regardless of whether they hold a GRC.

In its initial interim update published 25^th April 2025, the EHRC made a number of statements in relation to how the judgment will impact the workplace including:

• Employers must provide ‘sufficient’ single sex toilets and changing and washing facilities ‘where these facilities are needed’.
• Trans individuals should not be permitted to use facilities of their preferred/assigned gender, regardless of whether they have a GRC. If this is the case, it means the space is no longer single-sex and it must then be open to all employees.
• Trans individuals should still have access to facilities that they can use if there are facilities for biological men and biological women to use. Where possible, mixed-sex facilities should be provided.

The EHRC has seemingly changed its position on the requirement for single-sex toilets and removed the words “in workplaces it is compulsory to provide sufficient single sex spaces”. The guidance, updated 24^th June 2025, now has detail added in relation to compliance with the Workplace (Health, Safety and Welfare) Regulations 1992. The wording ‘Employers must provide ‘sufficient’ single sex toilets and changing and washing facilities ‘where these facilities are needed’ has been removed, and replaced with the following:

• 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 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.

MBM’s interpretation of this updated guidance is that toilets, changing facilities and showers can be mixed sex, if they comprise a separate room which can be locked from the inside.

As MBM’s guidance on the initial interim guidance said, the best thing you can do is listen to your employees. The guidance post-For Women Scotland is set to change over the coming months, and the EHRC currently have a public consultation open on their Code of Practice as a result of the judgment.

The main point to take from this update is that employers are not required to provide single-sex toilets at work. As long as toilets or other facilities are a separate room lockable from the inside, this will be sufficient to comply with the guidance.