Guidance confirms same-sex facilities to be used based on biological sex

Guidance from the Equalities and Human Right Commission (EHRC) on the use of same-sex facilities, such as toilets and changing rooms, has now been approved by ministers. As expected, it says that such facilities should be used on the basis of biological sex, in line with the Supreme Court ruling last year.

The guidance, which forms a Code of Practice for services, public functions, and associations, was published on Thursday. The EHRC had submitted the draft to the government back in September, where it expected ministers to take around six weeks before bringing the guidance to Parliament. Instead the government have taken eight months, saying that they would publish the report after the May elections.

Last year the Supreme Court ruled that, under the Equality Act, the definition of a woman was based on their biological sex, not on their own choice of gender identity. The EHRC guidance details how this should be put into practice for businesses and organisations who are open to the public.

The guidance specifies that use of same-sex facilities, such as toilets and changing rooms, should only be used by those of that biological sex. This means that a trans woman – someone who is biologically male but who identifies as female – could not use a female bathroom.

The guidance goes on to say that if trans people are not offered a third, gender-neutral space, then this could be viewed as discriminatory. It recommends that gender-neutral changing rooms should offer self-contained, lockable spaces with floor-to-ceiling walls. The EHRC also said that organisations could allow trans people to use disabled facilities, or if they only had two toilets, one male and one female, they could be converted to unisex facilities.

The guidance comes after a number of high profile employment tribunals where NHS employees has successfully claimed harassment for having to share same-sex changing facilities with trans colleagues. A number of organisations and businesses have delayed putting the Supreme Court ruling into practice until this guidance has been issued.

The EHRC said: “Organisations should continue to follow the law as clarified by the Supreme Court, taking specialist legal advice if needed … the draft Code supports providers in ensuring they can make practical, and ultimately sensible decisions for every day scenarios, such as toilet provision.”

Minister for Women and Equalities, Bridget Phillipson, said: “The Equality Act enshrines our rights in law so that people can live free from discrimination and harassment. Our focus has always been making sure organisations have clear, accessible guidance on how to implement the law.”

The 300 page guidance is now before Parliament where MPs and Peers have 40 days to raise any objections to the measures. If there are no concerns raised, then the guidance becomes statutory.