Are "trans inclusive" policies lawful?

In the aftermath of the Supreme Court decision in For Women Scotland v The Scottish Ministers [2025] UKSC 16 (FWS), there has been a raging debate about whether it is lawful for employers or service providers to provide trans inclusive facilities for changing, showering, and sanitary use. While the judgment is clear that it is lawful to run single-sex facilities on the basis of biological sex, some have argued that trans inclusive facilities are also lawful and that employers and service providers can choose which policy to adopt. This post will explain why that is not correct.

Employment

Firstly, in the employment context communal facilities for changing, showering, and sanitary use must be separated by sex. The Workplace (Health, Safety, and Welfare) Regulations 1992 place an obligation on employers to provide “sufficient and suitable” facilities for employees.

Regulation 20 states that sanitary facilities will not be suitable unless “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”.

Regulation 21 states that facilities for washing, including showers must be provided if required by the nature of the work or for health reasons. These facilities will not be suitable unless “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 in each such room are intended to be used by only one person at a time”.

Regulation 24 states that changing facilities must be provided to employees where they are required to wear special clothing for work and where, for reasons of health or propriety, employees cannot be expected to change in another room. These facilities will not be suitable unless “they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety”.

Employers can offer unisex options where they meet these conditions i.e. where facilities are provided in individual rooms for individual use.

Some commenters have presented the Supreme Court judgment in FWS as only pertaining to the Equality Act 2010. This is not accurate. The question before the Court was about the definition of “sex” in the Equality Act, but to answer that, the Supreme Court needed to set out and explain wider legal principles.

In FWS, the Supreme Court set out the legal test for when a Gender Recognition Certificate does not apply to sex-based legal rules. This test is not confined to the interpretation of the Equality Act and can be used to determine the meaning of sex-based rules in any other area of law. The default in our law is that sex means biological sex. This has been settled and clarified in Corbett v Corbett, Bellinger v Bellinger, A v Chief Constable of West Yorkshire Police, Croft v Royal Mail, Green v Secretary of State for Justice, For Women Scotland No.1, and now again in the second For Women Scotland case. Here the Supreme Court noted

“The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex [26]”.

Therefore, the only interpretations available for the references to “men” and “women” in the 1992 Regulations were either that they reference biological sex or they reference certificated sex. It has never been lawful to provide communal changing, washing, or sanitary facilities on a self-identification basis. It has never been lawful for employers to permit employees to use such facilities according to what they feel most comfortable with.

Regardless of how FWS was decided, self-ID policies were never lawful. All that the Supreme Court has done in relation to these policies is reiterate what was settled law. The fact that it has come as such a surprise to so many speaks only to the extent of misunderstanding there has been in this area of law.

The default of biological sex can be displaced for those with GRCs only where the Gender Recognition Act applies to that area of law. In FWS, the Supreme Court set out the test for determining when that occurs, noting that the rule in s.9(1) of the GRA which changes a GRC holder’s legally recognised sex will not apply:

“where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1)” [156].

That test can be applied to the 1992 Regulations in exactly the same way that it can be applied to the Equality Act 2010. The reason why the Supreme Court concluded that sex must mean biological sex in the Equality Act is because

“it makes no sense for conduct under the EA 2010 in relation to sex based rights and protections to be regulated on a practical day-to-day basis by reference to categories that can only be ascertained by knowledge of who possesses a (confidential) certificate” [173].

This was heavily informed by the practical implementation of exceptions in the Equality Act relating to single-sex services, including communal changing, washing, and sanitary facilities:

In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances. These provisions are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group – for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence. [211]

It is therefore clear that the meaning of “men” and “women” in the 1992 Regulations also references biological sex as the test for disapplication of the GRA will be met for the same reasons that it has been met in relation to the Equality Act.

This means that employers must provide either communal facilities for changing, showering, and sanitary use on a separate bases for biological men and biological women or unisex facilities which are for individual use. There are no other options.

Services to the public

The general norm in the Equality Act is non-discrimination based on the protected characteristics, including sex and gender reassignment. In that vein, section 29 sets out the law relating to the provision of services “to the public or a section of the public”. It states that a person who provides a service to the public or a section of the public, for payment or not, must not discriminate in the provision of that service. Discrimination in the provision of services can take many forms. Two examples relevant for this post are covered in s.29(1) and s.29(2) of the EqA. The first states that a service provider must not discriminate against a person “by not providing the person with the service”. The second states that a service provider must not discriminate against a person “as to the terms on which” the service is provided or by subjecting that person to any other detriments. If any of these are because of a protected characteristic, they are unlawful unless the service provider can rely on an exception in the EqA.

For our purposes, this means that without an exception, it is unlawful for a service provider to exclude someone from a service because of sex or to provide a service which has discriminatory terms or which subjects service users to a detriment because of sex. For example, it is sex discrimination to operate a woman only service which excludes men. As will be explained below, it is also sex discrimination to operate a “trans inclusive” woman’s service which excludes biological men who do not identify as women. It may also be sex discrimination, depending on the nature of the service, to operate a mixed-sex service which subjects women to a detriment not experienced by men or experienced worse by women. Without exceptions to the norm of non-discrimination, it would be unlawful to operate any services to the public which exclude portions of the population based on protected characteristics or which subjected people to detriments because of protected characteristics.

Compare a service which sought to operate a “white only” policy. This is clear race discrimination. It would still be race discrimination if the policy was “white only (Black men inclusive)”. If a black woman was excluded because she was black, that is race discrimination: on a simple comparator test, a white woman would be included so this is race discrimination contrary to s.29 EqA. The fact that this is also sex discrimination does not detract from the finding of race discrimination. Without an applicable exception, service providers must respect the norm of non-discrimination.

Schedule 3, paras 26-28 of the Equality Act permit a service provider to discriminate on the basis of sex and gender reassignment in order to provide a separate or single-sex service. We now know, following FWS that these exceptions only apply where that service is provided based on biological sex. This means that a trans inclusive service which, for example, seeks to exclude biological men who don’t identify as women and include biological men who do identify as women is precluded from relying on these exceptions.

A service provider cannot rely on the separate or single-sex exceptions in the operation of a service if the service in question is not provided based on sex. It is simply not open to a provider to run a service based on some characteristic other than sex and then claim that the service is a single-sex service for the purposes of the schedule 3 exceptions. If the service is not being provided separately based on sex, it is not a separate sex service. Without the ability to rely on the Schedule 3 exceptions, a service provider is exposed to liability for any discrimination or harassment arising from the operation of the service in question.

There are two ways that a trans-inclusive service can be unlawfully discriminatory: either because the service is not provided to some because of a protected characteristic contrary to s.29(1) EqA, or because the operation of the service subjects service users to a detriment because of a protected characteristic contrary to s.29(2) EqA.

Exclusion

If a service is not open to everyone because it seeks to limit provision in some way, it may be unlawfully discriminatory.

A “trans inclusive” service will be liable for discrimination arising from a policy of excluding a portion of the population because of sex. For example, a trans inclusive women-only service will exclude a portion of the male population because of sex. This would be direct sex discrimination because all those who are excluded are men. It does not matter that some male people will be eligible if they identify as women because there will be direct discrimination where there is “exact correspondence” between the disadvantage suffered and those who share a protected characteristic (Bull v Hall [2013] UKSC 73, [21]; James v Eastleigh Borough Council [1990] 2 AC 751). In this case, there would be exact correspondence between exclusion and sex because all those excluded are men. For example, a “white only (black men inclusive)” service will be engaged in race discrimination against ethnic minorities except black men. This is because all those excluded are non-white and they are excluded because of race/ethnicity. Similarly, it is direct sex discrimination for an employer to fire all women over the age of 40. It may also be age discrimination, but it is evidently sex discrimination because all those fired are women.

In addition, this policy will also amount to direct belief discrimination. A requirement that a male person must identify as a woman to be included is direct discrimination on grounds of a specific variant of gender identity belief, namely the belief, held by a male person, in being a woman. In Forstater v CDG Europe, the Employment Appeal Tribunal accepted that lack of belief in gender identity theory is protected under the Equality Act. It must follow that duty-bearers cannot lawfully discriminate against people for failing to believe in a protected variant of gender identity theory. A man excluded because he did not adopt this gender identity belief would have a valid claim of direct discrimination. In the same way, someone excluded from a service because they do not believe in the perpetual virginity of Mary has a valid claim of direct religious discrimination.

Inclusion

In addition to discrimination arising from the exclusion of men from a trans-inclusive women’s service, a successful claim of discrimination could arise from the detriment suffered by women service users by the inclusion of biological men within the service. This will depend on the nature of the service but is particularly likely to arise where the service involves the provision or use of communal changing, washing, or sanitary facilities.

I have written about when a mixed-sex facility amounts to sex discrimination against female service users at length here. For this post I will summarise the key point.

The leading case on whether mixed-sex toilets are unlawful is Earl Shilton Town Council v Miller [2023] EAT 5. The facts are relatively simple. Ms Miller worked as a clerk for Earl Shilton Town Council. Due to the inaccessibility of the female toilet, the primary toilet facility offered to her was use of the men’s. These facilities were not individual lockable rooms that we see in many newly built buildings. They were standard communal toilets with an open washbasin area, a cubicle in a corner of the room and urinals. Ms Miller complained that this amounted to direct sex discrimination against her and the EAT agreed.

The complaint that Ms Miller made was that she had suffered less favourable treatment “because of a difference in treatment between women and men in the provision of toilet facilities adequate to their needs” [5]. The way that this complaint was framed is of crucial importance. Ms Miller did not argue that she had been treated the same as a man but that this put women at a particular disadvantage compared to men. That would have been the indirect discrimination claim. Rather, she claimed that the treatment here was not the same: the men were afforded toilet facilities adequate to their needs and, because of her sex, she was not. As HHJ Tayler noted at [16]:

In this case it might be said that the same toilet facilities were provided to men and women and so the treatment was the same. However, if the treatment is assessed as being the provision of toilet facilities that are appropriate to a person’s requirements the analysis may differ.

It is centrally important to determine what exactly the detriment complained of is and whether that detriment amounts to less favourable treatment because of sex. Once it is accepted that ostensibly equal treatment could nevertheless give rise to unequal provision that causes a detriment, based on sex, for a female service-user, such provision cannot be said to be non-discriminatory. This is how HHJ Tayler understood the complaint in Earl Shilton:

28. Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals. While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourable. A woman being at risk of seeing a man using the urinals is obviously not the same as the risk of a man seeing another man using the urinals.Put another way, if one starts by considering the nature of the treatment, the claimant was not provided with toilet facilities that were adequate to her needs, because of the risk of coming across a man using the urinal and the lack of a sanitary bin. That treatment was less favourable than that accorded to men.

Here the comparator test does not ask whether a man seeing a woman use the toilet would be equivalent treatment. Rather the inquiry must ask whether a woman using a mixed-sex toilet or changing room is put at the same risk as a man using a mixed-sex toilet or changing room. If it is accepted that a woman would, because of her sex, be placed at a heightened risk to her safety or privacy than a man would be in that environment, then it cannot be said that there has been equal provision of toilets or changing facilities.

Communal mixed-sex changing, washing and sanitary facilities are unequal provision for women. Even though the physical space is the same, the facilities are objectively worse for women than for men because they carry with them a heightened risk for women compared with men. This is a detriment and it is grounded directly in sex because the heightened risk is due to sex. It is direct sex discrimination.

Conclusion

The best way for a service provider or employer to avoid liability for unlawful discrimination is to offer separate-sex changing, washing, and sanitary facilities provided on the basis of biological sex, supplemented, where reasonably possible, with the option of individual unisex facilities provided on a single use basis. Trans inclusive policies which amount to nothing more than the provision of individualised unisex facilities are perfectly lawful. Trans inclusive policies which attempt to include some biological men and exclude others on the basis of their gender identity amount to unlawful discrimination against the men excluded. Trans inclusive policies which place female service users at a detriment because of sex amount to unlawful discrimination against the women included. None of this discrimination is covered by the Schedule 3 exceptions because a trans inclusive service is not a single or separate sex service.