High Court ruling on EHRC guidance on single-sex spaces

For the last nine months, organisations have been trying to interpret the For Women Scotland decision. Several Employment Tribunal decisions have considered its impact on workplace facilities in practice (including those summarised here and here). The High Court has now given its view on some of the key issues in Good Law Project & Others v EHRC.

Although the matter before the court was fairly narrow – whether the Equality and Human Rights Commission (“EHRC”) had correctly set out the law in its interim update – the court also gives its opinion on how that law in relation to single-sex toilets and facilities should be applied by both employers and providers of public services.

Employment Tribunals in England and Wales are required to follow the High Court decision, so its interpretation of the law is important.

The EHRC interim update

In April 2025, the EHRC published an “interim update” on its website to help organisations and individuals understand the implications of the Supreme Court’s ruling in For Women Scotland. It focused on single-sex toilets and washing and changing facilities, provided by workplaces and by service-providers. The interim update was revised in June 2025 and then taken down in October 2025 (after the EHRC had submitted its proposed Services Code of Practice for Ministerial approval).

The wording of the (now withdrawn) interim update is set out at paragraph 7 of the High Court’s judgment.

Why the guidance was challenged

The Good Law Project and three individual Claimants brought judicial review proceedings to challenge the interim update. The court concluded that the Good Law Project as an organisation did not have standing, but the individual Claimants were allowed to proceed with the claim.

The individual Claimants had each been told by their employer to stop using the toilets matching their acquired gender, soon after the interim update was published. 
They challenged the guidance on several grounds. They argued that the EHRC had exercised its statutory powers unlawfully because the guidance was wrong in law. They also argued that even if the EHRC’s interpretation was correct, the law itself was incompatible with the European Convention on Human Rights.

The High Court’s decision

The High Court rejected the challenge on all grounds. It found that:

1.  The interim update, read as a whole, accurately summarised the law. It was not required to be comprehensive and included important caveats.
2. The EHRC had not breached its statutory duties under the Equality Act 2006.
3. There was no interference with Article 8 (the right to respect for private and family life); trans-inclusive facilities could be provided in addition to single-sex facilities. Even if there was interference, this would be capable of justification.

What this means for employers

In reaching its decision on point 1, the court set out its opinion on how the law should be applied by both employers and service-providers. In terms of employers, the court said:

• The Workplace Regulations 1992 require employers to provide “suitable and sufficient” toilet facilities – that means toilets in separate rooms for men and women, and/or unisex toilets in individual, lockable rooms.
• In the court’s view, “men” and “women” in the 1992 Regulations must be read to mean “biological men” and “biological women”, to ensure consistency with the Supreme Court ruling and the intention of the 1992 Regulations.
• The Equality Act 2010 and the 1992 Regulations provide a “floor” not a “ceiling”. It is up to employers to decide what additional facilities should be provided, “guided by common sense and benevolence”.

The court commented that in many cases, employers will need to go further, because the Equality Act 2010 also requires them not to discriminate on the grounds of gender reassignment. In its view:

• Requiring trans people to use toilets corresponding to their biological sex might constitute discrimination.
• On the other hand, requiring trans people to use unisex, individual lockable toilets is not likely to be discriminatory.

It also said that while employers are required to arrange their facilities to comply with the law, they are not required to “police” their use.  

What happens next?

The Good Law project has announced that it is appealing the decision, alongside the three individual Claimants.

The EHRC has said it will continue to engage with the Minister for Women and Equalities on its updated draft Code of Practice for Services, which is intended to provide further clarity.

In the meantime, the EHRC has urged organisations not to wait for the new Code of Practice to be published before taking steps to comply.

What employers should do now

Employers may need to review their provision of single-sex toilets and facilities and check that the wording of any relevant policies complies with the law.

Employers should focus on taking a “common sense” and proportionate approach, bearing in mind the points the court has made in this case, and consider taking specialist legal advice where needed. 

Our content explained