Updated EHRC guidance: Single-sex spaces must be used on the basis of biological sex

Background

The Court held unanimously that, for the purposes of the Equality Act 2010, sex means biological sex. In this context, biological sex means the sex recorded at birth, rather than acquired gender under a Gender Recognition Certificate (GRC).

The ruling had immediate consequences. It challenged Scottish Government guidance that had treated trans women with a GRC as women for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.

This judgment now forms the legal foundation for how public authorities, employers, and service providers must interpret sex based rights and obligations.

EHRC guidance

Following the Supreme Court’s ruling, the Equality and Human Rights Commission (EHRC) updated its guidance to reflect the clarified legal position. The EHRC has stated that, for Equality Act purposes, single-sex spaces should be organised and accessed by reference to biological sex.

This is not a new policy invented by the EHRC. Rather, it reflects the Supreme Court’s authoritative interpretation of the Equality Act. The EHRC does not make the law, but its role is to help organisations understand and apply the law as interpreted by the courts.

However, for many organisations, this update may feel like a significant shift, particularly where previous policies adopted a more flexible, case-by-case approach that relied on gender identity or GRC status.
 

Why does this decision matter?

The Supreme Court was asked a simple but important question: When the Equality Act 2010 talks about “sex”, does it mean biological sex or the sex written on a Gender Recognition Certificate?

The Court’s answer was clear: biological sex.

This clarity is legally helpful, but it also introduces new practical challenges. For years, employers and service providers have been encouraged to adopt inclusive practices that recognised gender identity and, in some cases, GRC status. Many organisations invested time and resources into developing policies that balanced dignity, privacy, and inclusion.

Now, the legal landscape has shifted.

A GRC still gives a person legal recognition in their acquired gender for many purposes under the Gender Recognition Act 2004. Gender reassignment also remains a protected characteristic under the Equality Act. However, the Supreme Court has clarified that a GRC does not change a person’s sex for the purposes of the Equality Act. This means that, for Equality Act provisions relating to single-sex spaces, access must be considered by reference to biological sex.

This can understandably feel confusing or even contradictory for organisations that have worked hard to support trans inclusion.

What does this mean for employers?

The most immediate implication is the management of single sex toilets, changing rooms, and other gender segregated facilities in the workplace.

Employers must now ensure that:

• Single-sex spaces are allocated by reference to biological sex, not gender identity or GRC status
• Equality, dignity at work, and transition policies reflect the clarified legal definition
• Risk assessments consider privacy, dignity, and safety for all employees
• Alternative arrangements, such as gender-neutral or self-contained facilities, are considered where appropriate

This does not mean that employers cannot support trans employees. It means that support must now be designed within the legal framework clarified by the Supreme Court.

Other areas likely to be affected include:

• Recruitment positive action (e.g., women only initiatives)
• Health and safety assessments
• Data reporting and monitoring

The EHRC’s updated guidance is intended to help organisations navigate these issues, but many employers will still need to review and revise their internal policies.

Practical steps for employers

Employers should take a practical and documented approach to reviewing their workplace arrangements. This may include:

• Auditing toilets, changing rooms, and any other sex-segregated facilities
• Reviewing equality, dignity at work, facilities, and transition policies
• Considering whether gender-neutral or self-contained facilities are available or should be introduced
• Training managers on how to handle requests sensitively and consistently
• Recording the rationale for decisions, particularly where privacy, dignity, or safety concerns arise

Where this leaves organisations now

The combination of the Supreme Court ruling and the EHRC’s updated guidance means that employers must now operate with a clearer, but more defined, legal interpretation of sex.

For some organisations, this will simplify decision-making. For others, it may require careful adjustment to policies and practices that were developed with a broader focus on inclusion.

The key legal interpretation is now clear: sex in the Equality Act means biological sex, and workplace arrangements involving single-sex spaces should be reviewed accordingly.

How we can help

Conversations around sex and gender reassignment can be sensitive, especially in the workplace. If you would like help navigating this tricky area or any other employment-related matter, please do get in touch with our Employment team on 020 8290 0440 (Bromley), 01732 496 496 (Sevenoaks), or employment@thackraywilliams.com.