How to respond to your employer’s excuses
The law is clear but many employers are still denying women the privacy and dignity of female-only toilets and changing rooms at work. These are the excuses we’ve heard, and why they are no defence.
1. The law is not clear
They say: It’s a complex, evolving area of law. There is no case law. For Women Scotland was only about the Equality Act 2010.
Why this is no excuse: Parliament passed the Equality Act in 2010. It has been in place since then. The meaning of sex in the act was clarified by the Supreme Court when it gave its judgment on 16th April 2025. There is nothing to wait for. The judgment is very clear. Anyone in doubt should read it.
2. We are waiting for the EHRC guidance
They say: The Equality and Human Rights Commission has consulted on its updated code of practice, and this has yet to be laid before Parliament.
Why this is no excuse: The code of practice for services, public functions and associations does not cover workplaces or employers. They are subject to the 1992 Workplace Regulations which require adequate single-sex facilities, as explained here. In any case, the EHRC code of practice does not change the law, which has already been spelled out by Parliament and the Supreme Court.
3. The law is being challenged
They say: There are several ongoing court cases relating to workplace facilities, such as the cases brought to employment tribunal by Sandie Peggie, the Darlington nurses and Maria Kelly. Separately, the Good Law Project’s judicial review of the EHRC’s guidance will be heard in the High Court in November 2025.
Why this is no excuse: The law is always being applied in legal cases. Employment tribunals are hearing cases every day all over the country. This does not mean the law can be ignored or considered moot.
The GLP’s request for a judicial review of the EHRC interim update will be considered by the High Court in November. The interim update is not a code of practice, nor is it the law. If the GLP was granted permission for its judicial review of the interim update, and even if it went on to win the case, this would not change the law. That was settled by Parliament when it passed the Equality Act 2010 and clarified by the Supreme Court when it gave its judgment on 16th April 2025.
4. Gender reassignment is a protected characteristic therefore….
They say: Gender reassignment is a protected characteristic in the Equality Act, therefore people with this characteristic must not be discriminated against.
Why this is no excuse: Protection from discrimination does not mean granting access to opposite-sex facilities. The legal position is that while trans individuals are protected under the characteristic of gender reassignment, the lawful provision of single-sex spaces based on biological sex is both permitted and in many cases required. Allowing men to use women’s facilities is a violation of women’s dignity, creates a hostile environment, and exposes an employer to claims of discrimination and harassment from its female employees.
Employers should ensure that trans employees are able to use suitable facilities.
What can you do?
Consider your position and whether you can push back.
We have added responses to these excuses to our page Know your rights on workplace toilets and changing rooms, where you can read our guide to the law on workplace single-sex facilities and use our draft emails to challenge employer policies.