Navigating Facilities Access in the Workplace

Following the judgment in For Women Scotland v The Scottish Ministers in April this year where the UK’s Supreme Court ruled that “sex” in the Act refers to biological sex, not gender identity, employers will want to be thinking about what they should do to ensure that no one is left without access to essential facilities whilst at work.

What does the law say?

Perhaps the best place to start is to look at what employers are legally required to provide.

The requirement on employers is to provide adequate single-sex toilets, as well as single-sex changing and washing facilities where needed. These facilities should be sufficient in number and accessible to all staff. This requirement ensures privacy, safety, and dignity for employees of all sexes.

For services that are open to the public, such as shops, cafes, and leisure centres, there is no automatic legal requirement to provide single-sex toilets or changing facilities. However, single-sex facilities can be provided if it is a proportionate means of achieving a legitimate aim, a principle set out in the Equality Act.  That said, if only mixed-sex facilities are available, this could lead to indirect discrimination, particularly against women, who may feel less comfortable or safe using shared spaces.

In single-sex workplaces or services, allowing trans women (biological males) to use women’s facilities or trans men (biological females) to use men’s facilities may mean those spaces are no longer legally considered single-sex. In such cases, access may need to be adjusted accordingly.

Best Practice for Inclusive Design

To meet both legal obligations and the diverse needs of users, employers should consider the following:

• Maintaining sufficient single-sex toilets and changing facilities.
• Where feasible, offering additional mixed-sex or gender-neutral spaces to promote inclusion.
• Single-user, lockable rooms (not just cubicles) can also be a practical solution, as they offer privacy and can be used by anyone, regardless of sex or gender identity.

Creating inclusive, respectful, and legally compliant environments isn’t always straightforward but it is essential. By planning ahead and making space for everyone, employers should be able to create workspaces and provide services that support the dignity and needs of all individuals.

Creating a Plan

So, what of a plan? As we have said, having a planned approach to tackle this issue is highly recommended to ensure that you minimise any negative impact this decision may have when providing workplace facilities. This is how your plan might look:

1. Review Policies and Assess Impact

Start by auditing your HR and Equality, Diversity, and Inclusion (EDI) policies to ensure they accurately reflect the legal definition of sex. This includes aligning terminology with current legislation and clarifying how these definitions apply across different workplace contexts.

Monitor employee feedback, HR casework, and complaints to identify where current practices may be unclear or outdated. This helps highlight areas that may require revision to stay legally compliant and inclusive.

2. Update Training for Staff and Managers

Revise your training materials to incorporate updated legal definitions of “sex” and “gender reassignment” as protected characteristics under the Equality Act.

Provide managers with practical tools and guidance to navigate sensitive discussions confidently and empathetically. Use real-world case studies to illustrate how inclusive practices can be applied respectfully and lawfully.

3. Strengthen Support for All Employees

Make sure confidential support channels are in place and clearly communicated—this could include HR contacts, Employee Assistance Programmes (EAPs), or peer support networks.

Cultivate a workplace culture where all employees feel safe to voice concerns, ask questions, and access support without fear of stigma or retaliation.

4. Communicate Clearly and Inclusively

Develop clear, inclusive communications to explain recent legal updates, what these changes mean in daily practice, and how they align with your organisation’s commitment to dignity and fairness.

Encourage open dialogue while setting clear boundaries that prevent discrimination, ensuring every voice is heard in a respectful, constructive manner.

5. Engage Legal Expertise

Seek guidance from employment law specialists to ensure your policies and practices remain compliant, especially in areas involving occupational requirements or the provision of single-sex services.

6. Document Decision-Making Transparently

Maintain thorough and objective records of how decisions are made when policies involve exclusions or distinctions based on sex. This helps ensure transparency, consistency, and legal defensibility in your approach.

Conclusion

This ruling serves as an important reminder of the balance between legal rights and having an inclusive workplace culture.

The Equality and Human Rights Commission (EHRC) has released its interim guidance and is working on a full code of practice which is subject to consultation that is due to close at end of June.  The consultation has updated the definition of legal sex throughout the code to say this is the legal sex recorded at birth and is unaffected by a gender recognition certificate.  It also sets out the various changes to the chapters that have been amended following the Court’s decision.

HR and people managers and leaders must clearly navigate this space ensuring compliance with the law but as ever operating with empathy, compassion, and respect are also all key to ensuring a more inclusive and harmonious workplace.

Please get in touch if you have any questions regarding the issues discussed in this article. 

E: help@jma-hrlegal.co.uk / T: +44 (0)1252 821792