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.
Thank you. I don't know if your work covers this, but something I come across a lot is sports organisations (cycling) requiring me to apply for membership based on gender identity. That is, one is asked whether one "identifies as male, female or other, or prefer not to say"? This data is then used, presumably, to track take up by men and women. To my mind this is inaccurate and misrepresentative, but also discriminates me based on my lack of belief. I don't believe in gender identity and giving me the option of "prefer not to say" is disingenuous, because "prefer not to say", may be interpreted to mean "I do self identify as something but I don't want to declare it"; rather than "I do not hold this particular personal philosophical belief". This style of questioning is never used for religious beliefs, only for gender identity. The same applies often to sportive events (not races) which track male & female riders, but entry is based on gender identity. I have challenged it successfully in the workplace but unsuccessfully with private companies.
I am concerned that some employers and service providers will attempt to convert all their provision to universal style mixed sex. My own employer was proposing this before the SC clarification, but luckily ran out of money.
The EHRC’s proposed new version of its Code of Practice for Services does touch on this. It says that “13.3.20 Similarly, if a service provider (including a person providing a service in the exercise of public functions) decides only to provide a service on a mixed-sex basis, without any separate or single-sex option, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. This is most likely in contexts like those referred to in paragraph 13.3.4.”
It’s also worth remembering that Building Regs had an update last year and Part T was introduced. This applies to new buildings other than dwellings. It it is not retrospective, so does not apply to existing buildings. It applies to new builds and buildings undergoing a material change of use after May 2024.
Part T requires single sex toilets to be provided as a minimum; with universal as optional extras. In short they must build single sex style. The building reg specifications for single sex toilets are different to universal provision. I believe a building owner could theoretically change them after the building was built. However, they would have to do substantial work to change them into universal style format - it wouldn’t just be a case of changing the sign on the door.
It’s also worth noting that providing universal style at scale to the specification in the Building Regs is really difficult from a design perspective. Each toilet has to open onto a free flow space, not a room. This means you need a very large free flow area that lots of doors can open onto.
In separate sex style toilets, cubicles are in a room and this requires only the door to the room opening onto a free flow area. You can get more loos into a smaller space with that design. Fitting in one or two universal toilets is ok, but making them all universal when you provide a lot is hard. Universal are also more expensive than single sex provision.
For anyone wanting to understand why universal toilets impact men and women differently Professor Clara Greed has some useful research papers on this.
A small but possibly interesting point is the Supreme Court's judgment disapplying section 9(1) of the Gender Recognition Act only refers to "legislation", see para 156 (which you quote) and para 265(v).
But presumably when it says "for all purposes" section 9(1) also applies to non-legislative purposes? For instance, the founding documents of a charity or association for women would presumably fall within the scope of s9(1).
The same reasoning that the Court applies to legislation should also apply to non-legislative instruments, there is no reason for inventing a difference. But the text of the judgment doesn't say this.
Where this might matter is that there is a difference between an organisation being required to exclude men from a women's organisation and having the power to exclude them, given that a number of women's organisations (I'm thinking of the Women's Institute and Girl Guiding) appear to want for the time being at least to continue to include trans-identifying men.
If the reasoning in For Women Scotland applies so as to say "woman" in a charity's or association's founding, non-legislative, document means "biological woman" just as it does for the Equality Act etc. then that is the end of the matter, except that the means of enforcement would presumably have to be an application to the civil courts for an injunction against the trustees, taken on the basis that the Supreme Court's ruling specifically on s9 not applying to single sex legislation also applies for the same reasons to non-legislative matters.
If For Women Scotland does not apply to the founding documents of a charity or association then the inclusion of trans-identifying men is discrimination under the Equality Act if other men are excluded or if trans-identifying women are excluded. Enforcement then becomes a matter of a County Court action under the Equality Act, but it is necessary to find a person with a claim.
Can you clarify: if a service provider, as opposed to an employer, said they were just going to provide unisex facilities ( not a single use room and as opposed to 'trans inclusive' facilities) would that be either NOT a 'proportionate means of achieving a legitimate aim' oand/or direct discrimination?
Hi Dusty. As I understand it the 'proportionate means of achieving a legitimate aim' test only applies if the service provider is seeking to use the exceptions allowed for in the EA to proactively discriminate in their provision, ie to provide separate or single sex services.
So, in the case you describe, the service provider might imagine that by simply not making any distinction between categories of service user they are avoiding any discrimination claim.
However, (if I've understood Michael's excellent tutoring and depending on the exact nature of the provision) they have failed to take into account that the toilet provision required by women differs from that required by men in terms of privacy and safety.
So, whilst the provision may meet the needs of men, it does not meet the needs of women and would therefore be a detriment to women. It would be direct discrimination on the grounds of sex.
I think we'll see JKR's fighting fund being used to establish where the discrimination bar is set in cases like this - we shouldn't have to because it's common sense stuff everybody knew 5 minutes ago but it will prove to providers that they can't get 'clever' with how the Act should be applied in practice.
I always thought we should get rid of 'proportionate means etc' and just say that service providers must have single sex provision subject to the size of the building etc but perhaps that is not necessary after all.
The proportionate/necessary test can work if it's applied correctly.
Unfortunately, imo, it's been misunderstood, taken to be a burden on providers and wrongly applied.
Because it uses the concept of 'exceptions' it's been used to justify 'inclusion' (aka discrimination against women) as the norm.
If the EA was well written it would be clear but it isn't. I think I'm an intelligent, well informed and sophisticated reader but I've only understood all this with considerable input from people like Michael and whenever I return to reading the actual Act I get confused again.
Thank you. I don't know if your work covers this, but something I come across a lot is sports organisations (cycling) requiring me to apply for membership based on gender identity. That is, one is asked whether one "identifies as male, female or other, or prefer not to say"? This data is then used, presumably, to track take up by men and women. To my mind this is inaccurate and misrepresentative, but also discriminates me based on my lack of belief. I don't believe in gender identity and giving me the option of "prefer not to say" is disingenuous, because "prefer not to say", may be interpreted to mean "I do self identify as something but I don't want to declare it"; rather than "I do not hold this particular personal philosophical belief". This style of questioning is never used for religious beliefs, only for gender identity. The same applies often to sportive events (not races) which track male & female riders, but entry is based on gender identity. I have challenged it successfully in the workplace but unsuccessfully with private companies.
I am concerned that some employers and service providers will attempt to convert all their provision to universal style mixed sex. My own employer was proposing this before the SC clarification, but luckily ran out of money.
The EHRC’s proposed new version of its Code of Practice for Services does touch on this. It says that “13.3.20 Similarly, if a service provider (including a person providing a service in the exercise of public functions) decides only to provide a service on a mixed-sex basis, without any separate or single-sex option, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. This is most likely in contexts like those referred to in paragraph 13.3.4.”
It’s also worth remembering that Building Regs had an update last year and Part T was introduced. This applies to new buildings other than dwellings. It it is not retrospective, so does not apply to existing buildings. It applies to new builds and buildings undergoing a material change of use after May 2024.
Part T requires single sex toilets to be provided as a minimum; with universal as optional extras. In short they must build single sex style. The building reg specifications for single sex toilets are different to universal provision. I believe a building owner could theoretically change them after the building was built. However, they would have to do substantial work to change them into universal style format - it wouldn’t just be a case of changing the sign on the door.
It’s also worth noting that providing universal style at scale to the specification in the Building Regs is really difficult from a design perspective. Each toilet has to open onto a free flow space, not a room. This means you need a very large free flow area that lots of doors can open onto.
In separate sex style toilets, cubicles are in a room and this requires only the door to the room opening onto a free flow area. You can get more loos into a smaller space with that design. Fitting in one or two universal toilets is ok, but making them all universal when you provide a lot is hard. Universal are also more expensive than single sex provision.
For anyone wanting to understand why universal toilets impact men and women differently Professor Clara Greed has some useful research papers on this.
A small but possibly interesting point is the Supreme Court's judgment disapplying section 9(1) of the Gender Recognition Act only refers to "legislation", see para 156 (which you quote) and para 265(v).
But presumably when it says "for all purposes" section 9(1) also applies to non-legislative purposes? For instance, the founding documents of a charity or association for women would presumably fall within the scope of s9(1).
The same reasoning that the Court applies to legislation should also apply to non-legislative instruments, there is no reason for inventing a difference. But the text of the judgment doesn't say this.
Where this might matter is that there is a difference between an organisation being required to exclude men from a women's organisation and having the power to exclude them, given that a number of women's organisations (I'm thinking of the Women's Institute and Girl Guiding) appear to want for the time being at least to continue to include trans-identifying men.
If the reasoning in For Women Scotland applies so as to say "woman" in a charity's or association's founding, non-legislative, document means "biological woman" just as it does for the Equality Act etc. then that is the end of the matter, except that the means of enforcement would presumably have to be an application to the civil courts for an injunction against the trustees, taken on the basis that the Supreme Court's ruling specifically on s9 not applying to single sex legislation also applies for the same reasons to non-legislative matters.
If For Women Scotland does not apply to the founding documents of a charity or association then the inclusion of trans-identifying men is discrimination under the Equality Act if other men are excluded or if trans-identifying women are excluded. Enforcement then becomes a matter of a County Court action under the Equality Act, but it is necessary to find a person with a claim.
Thank you for this very useful piece, Michael.
Can you clarify: if a service provider, as opposed to an employer, said they were just going to provide unisex facilities ( not a single use room and as opposed to 'trans inclusive' facilities) would that be either NOT a 'proportionate means of achieving a legitimate aim' oand/or direct discrimination?
Have cross posted.
https://dustymasterson.substack.com/p/telling-the-truth-as-a-revolutionary
Dusty
Hi Dusty. As I understand it the 'proportionate means of achieving a legitimate aim' test only applies if the service provider is seeking to use the exceptions allowed for in the EA to proactively discriminate in their provision, ie to provide separate or single sex services.
So, in the case you describe, the service provider might imagine that by simply not making any distinction between categories of service user they are avoiding any discrimination claim.
However, (if I've understood Michael's excellent tutoring and depending on the exact nature of the provision) they have failed to take into account that the toilet provision required by women differs from that required by men in terms of privacy and safety.
So, whilst the provision may meet the needs of men, it does not meet the needs of women and would therefore be a detriment to women. It would be direct discrimination on the grounds of sex.
I think we'll see JKR's fighting fund being used to establish where the discrimination bar is set in cases like this - we shouldn't have to because it's common sense stuff everybody knew 5 minutes ago but it will prove to providers that they can't get 'clever' with how the Act should be applied in practice.
Thanks, WOTE, that's very useful.
I always thought we should get rid of 'proportionate means etc' and just say that service providers must have single sex provision subject to the size of the building etc but perhaps that is not necessary after all.
Dusty
The proportionate/necessary test can work if it's applied correctly.
Unfortunately, imo, it's been misunderstood, taken to be a burden on providers and wrongly applied.
Because it uses the concept of 'exceptions' it's been used to justify 'inclusion' (aka discrimination against women) as the norm.
If the EA was well written it would be clear but it isn't. I think I'm an intelligent, well informed and sophisticated reader but I've only understood all this with considerable input from people like Michael and whenever I return to reading the actual Act I get confused again.
I’ll join that club, WOTE 😂