Single-Sex Spaces at Work: What Employers Should Do While Waiting for Further Guidance

June 1, 2026

There has been recent legal developments and updated government guidance which has confirmed how single-sex spaces, such as changing rooms and toilets, are operated in practice. Although this new guidance is not specifically directed at employers, it will still be relevant to workplace arrangements.

The Supreme Court’s decision last year in For Women Scotland was the catalyst for uncertainty in this area, and employers continue to grapple with difficult questions such as how should workplace single-sex facilities be managed in practice.

For employers, this is no longer a political discussion. Questions around toilets, changing facilities, privacy, dignity and inclusion are arising in everyday workplace settings and employers are expected to approach these issues carefully.

So where does this leave employers now?

Background: Further confusion

In the months following the Supreme Court’s decision, many employers hoped for practical guidance, instead, uncertainty arguably increased.

The EHRC briefly published interim guidance aimed at employers as to how they should implement the Supreme Court decision before withdrawing it shortly afterwards. At the same time, a number of Employment Tribunal decisions appeared to reach differing conclusions on how employers should approach workplace single-sex spaces and competing rights in practice.

Against that backdrop, many organisations have found themselves trying to understand an area of law that remains legally and socially sensitive, operationally difficult and highly fact-specific.

The new draft EHRC Code

Most recently, the EHRC published an updated draft Code of Practice for services, public functions and associations, replacing guidance last updated in 2011.

The update is intended to reflect legal developments, including changes in equality law and, notably, the Supreme Court’s recent decision on biological sex under the Equality Act 2010.

Although of interest for employers, this draft Code is not directed at workplace settings. The EHRC has indicated that the Employment Code of Practice is expected to be updated separately, although no clear timeframe has been provided.

That said, employers should not ignore the draft Code. While not legally binding in employment matters, it provides a useful indication of the likely direction of travel and demonstrates how the EHRC may expect organisations to approach single-sex spaces and competing protected rights.

Employers should not wait for a revised Employment Code before considering this difficult issue.

So what can employers do now?

The starting point remains Regulation 20 of the Workplace (Health, Safety and Welfare) Regulations 1992, which requires employers to provide “suitable and sufficient sanitary conveniences”. An employer can comply with this Regulation either by providing separate facilities or by providing facilities in a room which may be locked from the inside and may be used only by one person at a time.   

In a High Court decision earlier this year, the Court confirmed that strict compliance with Regulation 20 requires that workplace toilets provided for men should be for biological men, and those provided for women should be for biological women.

However, that is not the end of the story, as the High Court also made clear that compliance with the Health and Safety Regulations alone will not necessarily discharge an employer’s wider obligations under equality law. In particular, employers must ensure that their arrangements are not discriminatory on the grounds of gender reassignment.

Therefore, while the Court emphasised that a transgender person is required to use a toilet that corresponds to their biological sex, employers must also ensure that their toilet provision is not discriminatory on the grounds of gender reassignment.

The challenge for employers, therefore, lies in balancing these potentially competing obligations.

Practical options employers may wish to consider

There is no universal solution, and much will depend on the employer’s premises, workforce and operational realities. However, several practical approaches may be considered.

  1. Entirely gender-neutral facilities
    Some employers may opt for fully gender-neutral facilities, provided these remain compliant with health and safety requirements. While this can reduce some discrimination risks, it may not be practical in many workplaces and may itself raise concerns requiring careful consideration.
  2. Biological single-sex facilities alongside additional gender-neutral provision
    Where space permits, employers may wish to maintain biological single-sex facilities while also providing separate gender-neutral options. This is likely to be a practical and balanced solution for many employers, although it may not always be physically or financially viable.
  3. Biological single-sex facilities alongside a gender-neutral accessible toilet
    For many organisations, particularly those with limited space, this may be the most realistic short-term option. However, employers should approach this carefully. Consideration should be given to accessibility requirements, workplace dignity, and how facilities are labelled so as to avoid unintended exclusion or stigma.
A sensitive issue requiring careful assessment

As an employer you should not rush to make reactive changes.

Before implementing any changes to workplace facilities, employers should consider undertaking an impact assessment. This can help identify how proposals may affect different groups, including employees protected on the grounds of sex, gender reassignment and disability. A considered, evidence-based approach is likely to place employers in the strongest position should concerns or complaints arise.

This is a particularly sensitive area, engaging multiple protected characteristics including sex, gender reassignment and disability.

In your impact assessment you may wish to consider:

  • the needs of the workforce as a whole;
  • the potential for discrimination claims; and
  • the practical realities of the workplace environment.

Once considered, it is beneficial to log the rationale behind the decisions and consult with employees and/or staff networks, which may also be beneficial in identifying risks and workable solutions.

How can we help

This remains one of the most legally and socially complex workplace issues facing employers.

While further guidance is expected, employers should avoid assuming that this will be clear. The law, as it stands, already imposes obligations which organisations must navigate carefully and sensitively.

We support employers with practical, focused advice on all employment issues and upcoming changes in order to help employers meet legal obligations.

If you would like advice on preparing your organisation, please contact our Employment Team.

Darren Smith
Partner, Employment
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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