For Women Scotland and Female-only services

This post is a part of a series that I am doing in the legal aspects and implications of the appeal in For Women Scotland v The Scottish Ministers that will be heard by the UK Supreme Court at the end of November 2024.

The central question to be decided in this case is whether guidance issued by the Scottish Government about the meaning of the word “woman” in the Equality Act 2010 is lawful. That guidance states that a person with a full Gender Recognition Certificate (GRC) which confers upon them the acquired gender of female is a woman for the purposes of the Equality Act 2010. For Women Scotland have challenged the accuracy and therefore lawfulness of this guidance, claiming that the definition of woman in the Equality Act is tied to natal biological sex.

In this post, I want to address the issue of single-sex services, with particular attention to toilets and changing rooms in the workplace. Much of the commentary on this case has focused on the idea that, even if a GRC does change someone’s sex for the purposes of the Equality Act, it will still be lawful to have biological female only toilets and changing rooms. That certainly true for services provided to the public; but it is far from clear that it is also true in employment. My own past commentary on this issue has assumed that services provided in employment are treated the same as those to the public. That was a mistake. In this post I want to set out, in detail, where I think the law is on this issue. 

The TLDR version: Schedule 3 of the Equality Act permits both sex and gender reassignment discrimination in order to establish and maintain separate or single-sex services for the public. That means that, regardless of what the Supreme Court decides next month, for services open to the public such as toilets, changing rooms, hospital wards etc, possession of a GRC will not matter for the lawfulness of maintaining services only for biological women. But the same does not apply at work. There is no equivalent to Schedule 3 for the workplace. If sex is taken to be modified by a GRC, no workplace will be permitted in law to exclude any trans woman with a GRC from a female-only toilet or changing room that is exclusively used by employees.

This is because possession of a GRC will change a person’s sex and therefore change whether their exclusion from a female only facility is sex discrimination or gender reassignment discrimination. A trans woman without a GRC who is excluded from a female-only chaining room can bring a claim in sex discrimination, where some exceptions apply. But a trans woman with a GRC will be able to bring a claim that exclusion amounts to direct gender reassignment discrimination. There is no exception for gender reassignment discrimination in the provision of single-sex facilities at work.

The default position

The general norm in the Equality Act 2010 is non-discrimination. There is a list of protected characteristics on the basis of which duty-bearers such as the providers of services must not discriminate. Sex and Gender reassignment are both protected characteristics.

Sex is defined in s.11 of the Equality Act as whether one is a man or a woman. Section 212 defines man as a male of any age and woman as a female of any age.

Gender reassignment protects what the Equality Act refers to in s.7 as ‘transsexuals’: those who are proposing to undergo, are undergoing, or have undergone a process or part of a process of reassigning gender by changing physiological or other attributes of sex.

Without a GRC, everyone is classed legally as their natal sex for all purposes. This has been affirmed by courts in several cases including Corbett v Corbett, Bellinger v Bellinger, A v Chief Constable of West Yorkshire Police, Green v Secretary of State for Justice, and most recently by Lady Dorrian in the Inner House of the Court of Session in For Women Scotland v The Scottish Ministers at [56]: 

Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex.

Sex in law is, by default, biological sex. A trans woman is legally a man and a trans man is legally a woman. Non-binary or other identities do not alter one’s sex for the purposes of the Equality Act or any of the provisions relating to single-sex services. 

These classifications matter because if someone is excluded from a service on the basis of their biological sex, that will either be sex discrimination or gender reassignment discrimination, depending on whether the protected characteristic of sex means legal sex or biological sex. 

This point is complex but it has to do with the comparator test for discrimination. Sex discrimination occurs when someone is treated less favourably than another person of the opposite sex. For example, a woman is treated less favourably than a man. Gender reassignment discrimination occurs when someone is treated less favourably than another person of the same sex who doesn’t have the protected characteristic of gender reassignment. So a trans woman who is legally recognised as a man, would need to establish that a man who is not a “transsexual” for the purposes of the Equality Act would have been treated more favourably. 

If For Women Scotland win in the Supreme Court, sex in the Equality Act will remain tied to biological sex, meaning that exclusion of a natal male from a female-only service will always be sex discrimination and covered by sex discrimination rules and exceptions. Excluding a natal female who is “transsexual” (a trans man) from a female-only service will be gender reassignment discrimination and covered by gender reassignment discrimination rules and exceptions, where they exist. 

If For Women Scotland lose in the Supreme Court, a GRC will alter one’s sex for the purpose of the Equality Act, including for the purposes of single-sex services. This will mean that exclusion of a trans woman on the basis of their male sex will either sex discrimination (if there is no GRC) or gender reassignment discrimination (if there is a GRC). Similarly, excluding a natal female who is a “transsexual” (a trans man) from a female-only service with either be gender reassignment discrimination (if there is no GRC) or sex discrimination (if there is a GRC). Confused yet? It’s only going to get more complicated…

Section 29 services

Section 29 sets out the law relating to the provision of services “to the public or a section of the public”. This section therefore does not apply to the provision of single-sex or separate-sex toilets to changing rooms in the workplace, where the workplace does not also provide these services to the public or a section of the public. For example, the changing rooms for nurses, police officers, or other professionals that are not available to the general public.

The Equality Act makes provision for permissible direct sex and gender reassignment discrimination in relation to services covered under s.29. Schedule 3, paragraph 27 states:

There is a separate point to be made here about what a change to the meaning of “woman” would do to the establishment conditions set out in Schedule 9. The presumption has appeared to be that the Schedule 3 exceptions that permit gender reassignment (below) would apply to ensure that female-only services involving intimate touching or where people are in a state of undress would permit exclusion of trans women even if they have a GRC, in order to protect the rights of natal females to privacy, dignity, and safety. Paragraph 28 sets out the exception which permits gender reassignment discrimination in the provision of services to the public:

There are two points worth stressing here. The first is that these provision will change in operation depending on what the Supreme Court says next month:

If the PC of sex means biological sex:

• s.29 will apply to services offered to the public or a section of the public that differentiate on the basis of biological sex, setting the default to equal treatment. 

• Schedule 3, para 27 will set out conditions where single-sex services can be provided to members of the same biological sex. 

• Those conditions will make sense, because it is straightforwardly true that there will be some services where members of one biological sex would reasonably object to the presence of a member of the opposite biological sex or there there is intimate touching and someone would reasonably object if the person doing that touching was of the opposite biological sex. 

• These services having met the establihsment condition in para 27, sex discrimination and gender reassignment discrimination may be lawful in the operation and maintenance of these provisions. 

• Sex discrimination in the context of a female only service would cover exclusion of all biological males because for the purposes of the Act, sex is defined with reference to biology, not certificates. 

• The requirement that exclusion be objectively justified as a proportionate means of achieving a legitimate aim will be fairly easy to meet where establishment conditions relate to biological sex and exclusion is also tied to biological sex - for example where there is intimate touching or where person’s are undressed. 

• Gender reassignment discrimination in the context of a female only service would cover exclusion of those biological females who are proposing to undergo, are undergoing, or have undergone a process or part of a process of reassigning sex by changing physiological or other attributes of sex. In the context of a female only service, this could arise where a trans man has taken testosterone and therefore has a masculinised appearance. If that trans man was then excluded from a female-only service this would amount to either sex discrimination by perception or direct gender reassignment discrimination, both of which are covered by the schedule 3 exceptions.

If the PC of sex means certificated sex:

• s.29 will apply to services offered to the public or a section of the public that differentiate on the basis of certificated/legal sex, setting the default to equal treatment. 

• Schedule 3, para 27 will set out conditions where single-sex services can be provided to members of the same certificated/legal sex. 

• Most of those conditions will not make sense, because it difficult to imagine that there will be some services where members of one legal sex would reasonably object to the presence of a member of the opposite legal sex or there there is intimate touching and someone would reasonably object if the person doing that touching was of the opposite legal sex. These conditions make sense where biology is making the difference, where reasonable objection is based on bodies. It is simply not reasonable for someone to object to intimate touching from one person but not from another and the only difference between them is one has a particular government document. 

• This means that most services which would have met the establishment conditions in para 27 if sex meant biological sex, won’t meet the establishment conditions. On one reading, that will mean that it is unlawful to operate female only services at all, because even if female means legal/certificated female, the conditions set out in para 27(6)-(7) could not possibly apply. Again, nobody bases reasonable objection to intimate touching based on what legal sex someone is. The only way to make these provisions work is if a court concludes that a woman would reasonably object to being intimately touched by a legal man but could not reasonably object if that same person, identical in all other respects, possessed a GRC. 

• For the sake of argument, let’s assume that courts will just skip past this awkward legal issue and presume without, on this interpretation, textual foundation that female-only services do meet the establishment conditions in Schedule 3. If they do, it will then be lawful for a female-only service to exclude legal men on the basis of the para 27 sex discrimination exceptions and biological males with GRCs on the basis of the para 28 gender reassignment discrimination exceptions, where it is proportionate.

So, if we ignore the awkward issue of establishment conditions and just presume that female only services are intended to default to a conception of woman that is in fact biologically grounded, just with some exceptions, Schedule 3 ensures that these services can still operate on the basis of biology where justified. This is because, regardless of whether exclusion amounts to sex discrimination or gender reassignment discrimination, there are exceptions in Schedule 3 to cover them. 

But because s.29 only covers services provided to the public or a section of the public, these exceptions do not apply to services which are not provided to the public or a section of the public. That means that, for workplaces, there must be some other provision in the Equality Act that does for employment what Schedule 3 does for services to the public or a section of the public. If there is not, it may be unlawful to have female-only facilities altogether. 

Female-only facilities at work

Section 39 of the Equality Act makes it unlawful for an employer (A) to discriminate against an employee (B) as to terms of employment “in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service” or “by subjecting B to any other detriment”. 

If an employer discriminates against employees on the basis of either sex or gender reassignment by providing female-only toilets or changing rooms, this will almost certainly engage s.39. This means that, for female-only facilities to be lawful, there must be an exception similar to that in Schedule 3 that applies to s.39.¹ If there is not, then it will simply be unlawful for any employer to provide female-only toilets or changing rooms at work. 

That seems  an outlandish suggestion. Practically every employer in the country provides separate toilet facilities for men and women. Indeed, secondary legislation places obligations on employers to provide separate facilities in certain contexts. For example The Workplace (Health, Safety and Welfare) Regulations 1992, s.21(2)(h) provides that washing facilities shall 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 only one person at a time”

Similarly, at s.24 requires employers to provide suitable and sufficient facilities for any person at work in the workplace to change clothing where this is needed for work and that

“the facilities … shall not be suitable unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety”

But here’s the issue: regulations in the form of secondary legislation cannot override the provisions of primary legislation such as the Equality Act. If there is a conflict between a statutory instrument and a piece of primary legislation, the primary legislation wins out. So in the absence of a general defence of statutory authority (which is provided for various provisions of the EqA, but mysteriously not for s.39),  this does not resolve the issue. In order for employers to lawfully be able to provide separate facilities for men and women — and thus to meet their obligations under the Workplace (Health, Safety and Welfare) Regulations 1992 — we need to find textual foundation within the Equality Act itself. 

The only exception that I have found in the Equality Act that could be relevant here is Schedule 22, para 2. This pertains to “protection of women” and states that: 

The Workplace (Health, Safety and Welfare) Regulations 1992 were made in exercise of powers conferred upon the Secretary of State under Part 1 of the Health and Safety at Work etc. Act 1974, and are a ‘relevant statutory provision’ within the meaning of Part 1 of the Health and Safety at Work Act 1974 (which at s.53(1) includes “any health and safety regulations”) . They therefore engage the exception via ¶2(1)(b), to the extent that the provision of single-sex facilities can be properly described as done to protect women from risks specifically affecting women. In my view, requiring separate toilet and changing facilities for men and women can fairly be said to protect women from risks specifically affecting women; namely, the threat of male violence and infringement of privacy while in a state of vulnerability and undress. 

This isn’t a natural home for these exceptions. But the exceptions for separate and single-sex services only apply to services provided to the public or a section of the public. Provisions relating to the workplace have no equivalent. The closest we have is Schedule 22. 

Ff I am right that this is the only textual foundation for the lawful provision of female-only facilities in the workplace, that has significant implications for For Women Scotland v The Scottish Ministers. That is because it means that all provision for separate or single sex facilities in the workplace is tied to the meaning of the word “woman” in the Equality Act. That is exactly the word that is contested in this case. It has a statutory definition in s.212 as “a female of any age”, and the case is about  whether female means biological female or “legal” female, as determined by possession of the GRC. 

If For Women Scotland win, these provisions will continue to operate as normal, placing an obligation on employers to ensure separate facilities for men and women, understood on the basis of biological sex. If, however, woman is interpreted to mean biological females unless modified by a GRC, then it will mean that all references to woman must be interpreted to mean legal woman. That will mean that workplace changing rooms and toilets must operate by reference to GRC status. The exclusion of trans women without GRCs will be lawful instances of sex discrimination justified under schedule 22, para 2(8). But those trans women with GRCs will be legally classed as female, and any exclusion from toilets or changing rooms in the workplace will be direct gender reassignment discrimination. 

If this treatment fell to be analysed under Schedule 3, that would be fine, because there is scope for both sex discrimination and gender reassignment discrimination, where proportionate. But Schedule 22 only applies to pregnancy discrimination and sex discrimination; it is silent on gender reassignment discrimination. If the Supreme Court concludes that  trans women change sex in the Equality Act upon obtaining a Gender Recognition Certificate, they will be women for the purposes of the Act, and any exclusion of them from a female only service or facility will be gender reassignment discrimination, not sex discrimination. That gender reassignment discrimination will be unlawful, with no exception in Schedule 22 to permit it. It will never be lawful to maintain a workplace toilet or changing room on the basis of biological sex. 

[If you’re interested in reading a more detailed piece that addressed some of these issues for an audience of lawyers, please check out my forthcoming paper “On Defining Sex in Law, Law Quarterly Review (2025), available here.]

1. There is an argument that providing separate facilities is not discrimination because it is not less favourable treatment. There are two reasons to doubt the strength of this, intuitively appealing, argument. The first is that if this were so, it would render the exceptions in Sch 3 para 26 redundant. Those exceptions would only be effective if providing separate services for persons of each sex was by default unlawful discrimination contrary to s.29. It is only on the basis of that default position that the exception which sets out conditions necessary for separate services to be lawful would make any sense at all. The second reason is that this interpretation has been treated with approval by the Supreme Court in R (Coll) v Secretary of State for Justice, [34]. Even if it is argued that separate facilities on the basis of sex are not per se discriminatory unless there is a detriment, I do not think that it is so easy to dismiss the claim of detriment that could be brought by a trans person who suffered psychological distress from this arrangement. A court may dismiss that as not truly a detriment because no reasonable person could feel aggrieved by the exclusion, but I am doubtful that this is a certainty.