Briefing | EHRC interim update on Supreme Court ruling on definition of "sex"

Following the ruling, the national equality and human rights regulator for England, Scotland and Wales is working 'at pace' to update its statutory and non-statutory guidance, which will help employers, service providers, public bodies and associations understand their duties under the Equality Act and put them into practice.

The interim update from the EHRC outlines that under the Equality Act:

• a ‘woman’ is a biological woman or girl (a person born female)
• a ‘man’ is a biological man or boy (a person born male) 
• if somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC)
• a trans woman is a biological man
• a trans man is a biological woman.

The EHRC interim update further states:

"In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.

In workplaces and services that are open to the public:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men”.

The interim update makes additional reference to competitive sports, schools and associations.

The CIPD says:

"Organisations should be reviewing their provision of facilities to ensure they are legally compliant in line with the EHRC interim update. This update from the EHRC states several instructions to be followed by employers. The update is clear that sufficient single sex facilities should be provided by employers and that transgender women should not be permitted to use the women's facilities and transgender men should not be able to use the men's facilities.

Organisations should take note of all parts of the update when considering any actions they may need to take, including that transgender people should not be put in a position where they have no facilities to use and that additional mixed sex spaces should be considered where possible. The Supreme Court was clear that legal protections under the protected characteristic of gender reassignment from the Equality Act are unchanged and organisations should be mindful of these as they make any adjustments to approach.

The CIPD will work with our members to ensure the EHRC is aware of how the forthcoming statutory guidance may need to be developed to ensure that it is practical for employers and employees alike - we will update members in early May. We expect the EHRC consultation to take place in May 2025 and we will update our guidance appropriately when the statutory guidance is available or changes are made.

We are aware that some organisations, employees and practitioners have strong and varied views on both the EHRC guidance and the Supreme Court judgement. We recognise the implications of the interim update will cause challenges for many businesses and immediate impacts for employees.

Ultimately, the EHRC interim position on some key legal obligations is clear and organisations should therefore ensure that necessary support, communication and guidance is in place to address a sensitive issue compassionately, as they carry through any necessary changes to ensure they are meet these.”