When are mixed-sex toilets unlawful?

In the next few months there will be a string of employment tribunal cases addressing the question of when, if ever, the provision of mixed-sex facilities such as toilets and changing rooms will be unlawfully discriminatory against women. In this post, I want to explore the legislative framework and background case law that will likely inform these cases. 

The law in this area may be affected by the Supreme Court decision in For Women Scotland v The Scottish Ministers (No 2), which had not been published yet. I have written elsewhere about how that case might affect the law in this area. But so far as I am aware, none of the upcoming cases involve an employer or service provider operating female only toilets or changing rooms on the basis of GRC status, so we can leave those questions aside for now.

In this post I want to look at a different aspect of these kinds of cases: direct discrimination. It is usually assumed amongst discrimination lawyers that if there are claims to be advanced in relation to the lawfulness of trans inclusion policies which permit natal males to use female-only facilities, they will be in harassment or indirect discrimination. But recent case law from the Employment Appeal Tribunal suggests that a woman challenging the lawfulness of such policies can bring a successful claim in direct discrimination. 

This is important because direct discrimination can only be justified expressly; if it is established there is no possibility of excusing the treatment or of balancing the interests of one group against the interests of another except where there is a statutory provision permitting discrimination. 

Mixed-Sex Facilities 

The cases that are working their way through the tribunal system right now concern the provision of purportedly single-sex services on a mixed-sex basis. These policies are on a self-identification basis, usually presented as permitting staff to use whatever facility they feel most comfortable with or which best reflects their gender identity. 

This means that these facilities are mixed-sex. It is settled law that (leaving aside GRC status), a person’s sex is determined by reference to their natal, biological sex, regardless of gender identity, medical intervention, or change in documentation [Corbett v Corbett; Bellinger v Bellinger; Croft v Royal Mail; Green v Secretary of State for Justice; For Women Scotland v The Scottish Ministers (No 1); For Women Scotland v The Scottish Ministers (No 2)]. 

As far as UK law is concerned, the expression of a gender identity at variance with one’s sex does not alter one’s legal status: a natal male who identifies as a woman is, unless in possession of the GRC, a man for all legal purposes. Facilities provided on the basis that staff members can use whichever they are most comfortable with or which match their gender identity are, by definition, mixed-sex. 

Importantly, it is settled law that being a “transsexual” for the purposes of the Equality Act - i.e. being protected under the characteristic of gender reassignment - does not confer any legal entitlement to use single-sex facilities intended of the opposite sex [Croft v Royal Mail; Green v Secretary of State for Justice; For Women Scotland v The Scottish Ministers (No 2)]. There is therefore no legal obligation on any service provider or employer to adopt policies which permit people to use single-sex facilities provided for the opposite sex. 

Sex Discrimination 

The test for direct discrimination is set out in s.13 of the Equality Act 2010: 

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others

So to determine whether the provision of mixed-sex facilities such as toilets or changing rooms is directly discriminatory, we must ask whether such provision treats a female user less favourably than others because of her sex. 

The intuition amongst lawyers is that for something to be direct sex discrimination, it must treat men and women differently. Otherwise we are in the realm of indirect discrimination where analysis turns to see if a provision, criterion, or practice which is neutral as between protected characteristics unjustifiably puts those who share a protected characteristic as a particular disadvantage compared to those who do not share it. 

The analytical structure of indirect discrimination is such that it requires group-based comparison: looking at how, for example, female employees as a group are affected by a given policy. Direct discrimination does not ordinarily require such analysis. As Sir Terence Etherton MR noted in Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School [2018] IRLR 334, at [50]:

The starting point is that EA 2010 s13 specifies what is direct discrimination by reference to a “person”. There is no reference to “group” discrimination or comparison. Each girl pupil and each boy pupil is entitled to freedom from direct discrimination looking at the matter from her or his individual perspective.

Direct discrimination is not concerned with group discrimination, even if it must still be shown that the less favourable treatment suffered by the claimant was because of her sex. What this means is that if all other female employees had no issue with natal males using the female toilets or changing rooms, that may be sufficient to negate an indirect discrimination claim, but it would not do so for a direct discrimination claim. It does not matter what other female employees are willing to consent to if there is one individual woman who objects to the treatment and it can be proven that she was treated less favourably than a man has been or would be treated, because of her sex. So the central issue here is whether the provision of mixed-sex facilities would amount to less favourable treatment of a female complainant because of her sex. 

Bull v Hall [2013] UKSC 73

So, how are we to determine whether the provision of mixed-sex facilities amounts to less favourable treatment? There are two points of law that will help us here. The first is that discriminatory treatment is not always different treatment: sometimes the same treatment treats people less favourably than others. The second is that sometimes something that looks like it’s equal treatment is actually not, depending on how we frame the nature of the treatment. 

Consider the case of Bull v Hall where a B&B owner imposed the same policy on all guests: only married couples could book a double-bedded room. This case arose before the introduction of same-sex marriage in 2013, so only married heterosexual couples were able to book a double-bedded room. On its face this is equal treatment: the same rule is applied to both heterosexual and homosexual couples and any detriment suffered by a gay couple could not be because of sexual orientation because an unmarried straight couple would also be denied a double-bedded room. 

Lady Hale noted at [17] that, while direct and indirect discrimination are conceptually distinct, “the distinction is by no means easy to draw, as this case illustrates all too clearly”. Nevertheless, there are legal principles that can be relied on for guidance. 

One way to identify when equal treatment will be discriminatory treatment is when there is an “exact correspondence” between those suffering a disadvantage and those who share a protected characteristic. For example, in James v Eastleigh Borough Council [1990] 2 AC 751 there was an exact correspondence between the protected characteristic of sex and the Council policy of allowing those who had reached the state pension age free entry to its swimming pool. Men reached the pension age at 65 and women reached it at 60, meaning that all those who suffered a detriment were men and it could therefore be concluded that the less favourable treatment was because of sex. This was direct discrimination, not indirect discrimination, notwithstanding the fact that the same rule applied to everyone and didn’t on its face differentiate between men and women. Where all those who suffer a detriment share a protected characteristic, there will be direct discrimination. 

Importantly however, there must be exact correspondence. It will not be sufficient to point to the fact that many or most who suffer a disadvantage share a protected characteristic. That would be indirect discrimination. Thus, while direct discrimination is ordinarily concerned only with the individual claimant, group based analysis may be relevant, but only in relation to exact correspondence, not particular disadvantage faced by a subset of the group. It is for this reason that Lady Hale rejected the reasoning of the Court of Appeal in Bull v Hall. It had applied James v Eastleigh Borough Council to the B&B example and concluded that there had been direct discrimination on grounds of sexual orientation. But Lady Hale correctly noted at [21] that 

there is not an exact correspondence between those suffering the disadvantage of being denied a double bed, and those enjoying the correlative advantage of being allowed one, with the protected characteristic. While all same sex couples were denied, so too were some opposite sex couples. 

While only heterosexual couples could benefit from this policy, that is not the same as saying that only homosexual couples suffered a detriment. It is the latter that must be proven to establish direct discrimination on the basis of sexual orientation. The exact correspondence must be “between the disadvantage and the protected characteristic” [23] not the advantage. 

Lady Hale nevertheless concluded that this policy was directly discriminatory on the basis of sexual orientation. She did so by interrogating the policy in light of relevant regulations and determining the appropriate comparator accordingly. A comparator test is one way to establish less favourable treatment: consider how the claimant has been treated and compare that to a similarly situated person who does not share the protected characteristic in question. 

In this case the claimants were a homosexual couple. But crucially, they were also a couple in a civil partnership and, under The Equality Act (Sexual Orientation) Regulations 2007, Regulation 3(4), the difference between being married and being in a civil partnership is not to be treated as a material difference for the purpose of a finding of either direct or indirect discrimination. This means that the comparator test must treat married couples and civilly partnered couples as being in a materially similar situation for the purposes of determining direct discrimination. 

The correct comparator test in this case was therefore not one which asked whether straight couples and gay couples would be treated the same. They would be: if they were unmarried they were denied a double bed. Rather, it is to ask whether a civilly partnered couple would be treated less favourably than a married couple. Yes. But because the law treated civilly partnered and married couples as being in a materially similar situation, the only basis of the less favourable treatment had to be sexual orientation. 

What is more, considering the exact correspondence test with the appropriate comparator, there was an exact correspondence between the detriment suffered and sexual orientation, once the detriment is understood to be denial of a double bed to a married couple [where married here covers both those in marriages and those in civil partnerships as per Regulation 3(4)]. Therefore, Lady Hale concluded at [29] that “there is an exact correspondence between the advantage conferred and the disadvantage imposed in allowing a double bed to the one and denying it to the other.” 

Sometimes what looks like equal treatment is in fact less favourable treatment, depending on how the analysis is undertaken. That analysis will often depend heavily on getting the comparator test right. 

Less favourable treatment by virtue of unequal provision

It has been well established now that treating everyone by reference to the same standard may still be less favourable treatment if the treatment has an adverse impact on the quality and effectiveness of a benefit or facility on grounds of a protected characteristic (Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School [2018] IRLR 334, at [62], [67], [80]). Effectively the law recognises that unequal provision can be less favourable treatment. If the provision is unequal in terms of suitability or quality because of sex rather than say height, this could be direct discrimination not indirect. If the less favourable treatment is due to unequal provision by failure to meet particular needs arising out of height differences, this will be because of height and therefore must be assessed under indirect discrimination. But if the reason why the provision is unequal is because of sex, then that will be direct discrimination.

In the specific context of sex, the Court of Appeal noted in Smith v Safeway [1996] IRLR 456: 

As [counsel for the employers] has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards? I put that question to [counsel for the applicant], and he accepted that such a requirement would operate unfavourably towards men. The reason for that is that the appropriate criterion to be applied when considering that question is: what is the conventional standard of appearance? Indeed, it seemed to me that [the applicant’s counsel] implicitly conceded that when he submitted to us that what is discrimination can change as society changes. A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an even-handed approach between men and women and not one which is discriminatory.

The point of law that we can draw out from this is that what looks like identical treatment can constitute less favourable treatment on grounds of sex where such treatment causes a detriment for the complainant but would not do so for a comparator of the opposite sex. Requiring all employees to wear lipstick at work causes a detriment for male employees that it does not cause for female employees because it requires male employees to dress in a socially unconventional manner for their sex and does not do so for female employees. The treatment complained of is not merely a requirement to wear lipstick, it is a requirement for male employees to dress unconventionally for their sex while female employees are permitted to dress conventionally for their sex. 

Framed in that manner, the treatment complained of is not neutral as between the sexes. This can be distinguished from an indirectly discriminatory policy which is neutral but puts one group at a particular disadvantage. Compare the sexually unconventional uniform example to a standard height example: in order to work in this job you must be above a certain height. The central difference here is that in the uniform example, the detriment suffered is because of sex, whereas in the height example, it is merely a probable correlation. All employees are required to be above a certain height - for the women who are above this height, they suffer no detriment. 

In contrast, for the men who do not mind wearing lipstick, they simply do not object to a particular sex-based detriment. This does not mean that there has been no detriment, nor that the detriment is not because of sex. Determination of whether certain treatment gives rise to a detriment requires an objective assessment of whether a reasonable worker would or might take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they had to work (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11). If a reasonable worker might consider a requirement to breach social taboos to be a detriment, then that is a detriment, regardless of whether other workers would not object. If this detriment is because of sex, then it will constitute less favourable treatment because of sex and will be direct sex discrimination. 

Central to this analysis is the claim that being required to dress unconventionally for one’s sex is a sex-based detriment. It may not be in 2025 to the same extent that it was recognised to be in 1996. Nevertheless, the legal principle remains the same: there is an important difference between direct discrimination by virtue of a sex-based detriment which some do not object to and indirect discrimination where the treatment complained of does not actually put all those affected at a detriment because of their sex. 

Returning to the issue of seemingly equal treatment which is in fact unequal provision, the judgment of the Supreme Court in R (Coll) v Secretary of State for Justice [2017] UKSC 40 is instructive. This case concerned the placement of certain prisoners into Approved Premises (APs) as a condition for release on licence. The conduct under challenge was ostensibly equal as between men and women: all prisoners would be placed in an AP which corresponded with their sex. This put women at a particular disadvantage because they were far more likely to be placed in an AP far from their home, due to there being much fewer APs for women than for men. 

The central point here is that the treatment complained of was not “being placed in a single-sex AP”; it was because the provision offered was inadequate for women compared to men due to the increased risks women faced under this system. 

Lady Hale makes an important point at [37] that informs much of her analysis in this case: “the needs of women offenders are recognised to be different from the needs of male offenders”. This is because “Expecting women offenders, with their many vulnerabilities, to share premises with male offenders who by definition present a high or very high risk of harm is not likely to be an effective way of helping them with the transition to an independent and law abiding life in the outside world” [38]. It was for this reason that single-sex APs were essential. The issue here was not that men and women were being placed in single-sex APs, it was that the provision was not equal because women were at a much higher risk of suffering a detriment (being placed far from home) than men were. 

This might seem like a textbook indirect discrimination case. But consider whether any women would be able to avoid this detriment? The answer is no. Unlike most cases of height discrimination, where there will be some women who are tall enough that they do not suffer the detriment, in this case, all women suffered from the unequal and inadequate provision of services which was inadequate because of their sex. Even those who were placed in an AP close to their home suffered, because of their sex, from this higher risk that male prisoners did not experience. It is worth setting out in full what Lady Hale has to say on this point: 

28. Mr Chamberlain QC, for the Secretary of State, raises a new argument before this Court. Not all women suffer the detriment complained of. Some are placed reasonably close to home. Therefore, there cannot be direct discrimination, because that requires exact correspondence between the disadvantaged class and the protected characteristic, as held by this Court in Patmalniece v Secretary of State for Work and Pensions (AIRE Centre intervening) [2011] UKSC 11, [2011] 1 WLR 783, and discussed at some length in Preddy v Bull (Liberty intervening) [2013] UKSC 73, [2013] 1 WLR 3741

.29. However, as Ms Rose correctly points out, the “exact correspondence” test is only relevant where the actual criterion used by the alleged discriminator is not a protected characteristic but something else. In Patmalniece it was not having the right to reside in the United Kingdom; in Preddy v Bull, it was not being married. The question is whether some other criterion is in reality a proxy for the protected characteristic. The best-known example is James v Eastleigh Borough Council [1990] 2 AC 751, where people who had reached the state retirement age were allowed free entry to the council’s swimming pool. The differential state retirement ages for men and women meant that a 61-year-old woman got in free whereas her 61-year-old husband did not. This was held to be direct discrimination on grounds of sex. In this case, there is no doubt what the criterion is. It is sex, which is itself a protected characteristic.

30. Furthermore, it cannot be a requirement of direct discrimination that all the people who share a particular protected characteristic must suffer the less favourable treatment complained of. It is not necessary to show, for example, that an employer always discriminates against women: it is enough to show that he did so in this case. In the Birmingham case, some of the girls achieved a high enough pass mark to gain a place at a selective school. What all the girls suffered from was the risk that if they did not get a high enough mark, they would not get a place - just as, in the recent case of Essop v Home Office (Border Agency) [2017] UKSC 27; [2017] 1 WLR 1343, all the BME candidates suffered from the greater risk of failing the core skills assessment required for promotion, but of course some of them passed it. In the Birmingham case, some of the girls did of course achieve a high enough mark to get a place. But there were some who achieved a mark which would have been high enough had they been boys but was not high enough because they were girls. That is direct discrimination on grounds of sex.

31. I can see no valid distinction between the Birmingham case and this one. In this case, all the women who would be required to live in an AP when released on licence suffered the much greater risk than the men that they would be sent to an AP far from their homes and families. The fact that some of them would not suffer this detriment does not mean that those who do suffer it have not been discriminated against.

It is vitally important to establish what the detriment is that is complained of. In this case it was the provision of unequal and inadequate APs on the basis of sex. That inadequate provision manifested itself in there being a higher risk that female prisoners would be placed far from home. That detriment is because of their sex. As such, no further analysis is needed. There has been less favourable treatment because of sex. 

There is therefore no need to examine the doctrine of exact correspondence here, but in my view it is also applicable: if the detriment is an increased risk of being placed far from home, that is experienced by all women prisoners to be placed in an AP and the heightened risk is experienced only by women prisoners. If the detriment was instead presented as the actualisation of that risk, then we would be in the realm of indirect discrimination because some men were placed far from home and some women were not. But the detriment here is not the placement; it is the heightened risk directly tied to the sex of the prisoner. This amounts to unequal and inadequate provision on the basis of sex and is therefore direct discrimination. 

At [43] Lady Hale expressly addressed whether this could be framed as an indirect discrimination claim and she was adamant that this would simply be a different claim, complaining about a different aspect of the treatment suffered:

“The whole point of indirect discrimination is that a PCP is applied equally to, in this case, men and women, whereas the complaint here is of unequal provision. “Shoe-horning” the complaint into indirect discrimination by identifying the PCP as the requirement to live in an AP on release on licence does not really work, because what has to be justified is the PCP, and such a PCP is readily justifiable by the aims of protecting the public, reducing reoffending and assisting the offender’s rehabilitation.”

The treatment complained of in this case was not “being placed in an AP”, nor even “being placed in a single-sex AP”, it was the inadequate and unequal provision of APs based on sex which exposed women to a heightened risk of being placed far from home. That was a detriment faced only by women, even those for whom the heightened risk did not actualise. 

Mixed-Sex Toilets as Unequal Provision

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.

We can see strong parallels between this analysis and that of Lady Hale in Coll. 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 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.