Executive Summary
Since the Supreme Court’s decision in For Women Scotland v The Scottish Ministers nearly a year ago, there has been much debate and a fair amount of litigation surrounding the use of single sex spaces, specifically toilet and changing facilities, by trangender individuals.
There has also been ‘heat’ around the Equality and Human Rights Commission’s ‘Services, public functions and associations’ Code of Practice (CoP) in respect of the same single sex spaces issue. This includes concern over the government’s delay in approving (or otherwise) the EHRC’s updated CoP; and a legal challenge in the High Court brought by The Good Law Project (GLP) as to the legality of the EHRC’s Interim Update to the CoP, which it published following the Supreme Court decision, and later withdrew following criticism of it.
In its decision, delivered in February 2026, the High Court rejected the GLP’s challenge and found that the EHRC’s Interim Update had been lawful. However, part of the judge’s technical legal reasoning set out in the judgment has been taken out of context and / or misinterpreted in some subsequent press coverage suggesting that, contrary to the Supreme Court decision, the GLP judgment indicated that trans-inclusive single-sex spaces, such as toilets or changing facilities, are lawful.
Subject matter expert, Melaine Steed, looks at what the High Court did – and, importantly, did not -decide, and de-bunks any suggestion that the Supreme Court decision has been altered or watered down.
EHRC guidance: Where are we up to?
Shortly after the decision of the Supreme Court in For Women Scotland v The Scottish Ministers (FWS) last April, the Equality and Human Rights Commission (EHRC) issued an ‘Interim Update’ to set out its thoughts on the implications of the decision. This was issued quickly and was later updated but was expressly not intended to replace their two existing relevant Codes of Practice, which relate separately to suppliers of goods and services (2011) and to employment (2015).
In September the EHRC presented its updated Code of Practice for those supplying goods and services to the Minister for Women and Equalities, Bridget Phillipson, and there it has sat ever since. In the meantime, the Interim Update was withdrawn by the EHRC and the now very out of date EHRC Codes of Practice remain in place.
The judicial review challenge
Meanwhile the Good Law Project (the GLP), a UK-based non-profit campaign organisation, and three individuals, started a High Court challenge against the EHRC in respect of the lawfulness and accuracy of the Interim Update. This was, in our view, a risky strategy on their part given the possibility of creating a binding precedent in relation to a temporary measure. As it transpired, this proved to be the case.
The High Court (Mr Justice Swift) had to consider whether the GLP had legal standing to challenge the Interim Update, but also the substantive merits of its arguments, and the individuals’ arguments, on its accuracy. On the first issue, Swift J found the GLP did not have the ability to make such a challenge, confirming that merely having a sincere interest in the subject matter of a case was not enough to establish a ‘sufficient interest’ for the purposes of the pursuing judicial review. The three individuals could however bring the challenge as they were personally affected by the Update.
The arguments
Turning to the substance of the challenge to the Interim Update, the central argument was that the guidance contained within the Update misstated the law and was therefore unlawful and outside the powers of the EHRC. It was further argued that, even if the Update was not inaccurate, it gave rise to a breach of the rights of transgender people under the European Convention on Human Rights (the Convention).
Some of the arguments raised in the course of the case were particularly interesting and/or novel while some had already been rehearsed, in commentary and elsewhere, following the FWS decision. In summary, it was argued that:
- the Workplace Regulations 1992 (the Regulations), which stipulate that an employer can comply either by providing separate single-sex facilities or by providing facilities in an individual lockable room to be used by one person at a time, did not require that the terms ‘men’ and ‘women’ should be read consistently with the decision in FWS (i.e. they were not limited to biological sex)
- that the definition of ‘women’ in the Regulations should mean biological women and trans women (i.e. “certificated sex” by reference to s.9 Gender Recognition Act 2004)
- the Regulations require provision of single-sex spaces but say nothing about how those facilities should be used
- the facts that such facilities may be cleaned or maintained by someone of the opposite sex, or that young children may accompany their parent into such spaces irrespective of sex, did not prevent those spaces being single sex, so why should that be the case if the space is used by a trans person?
- that it was impossible to ‘police’ the use of such facilities and/or would be too great a burden on employers to have to do so
- separate e.g. gender-neutral facilities would be ‘othering’ and could be discrimination on grounds of gender reassignment
- that there was unlawful interference with the rights of a trans person to respect for private and family life under article 8 of the Convention
Notably, and as an intervenor in the case, Bridget Phillipson, the Minister for Women and Equalities, had submitted that if female-only lavatories were provided they could continue to be single-sex even if trans women were permitted to access them. Ms Phillipson argued that such facilities could continue to rely on the protections afforded to single-sex services within the Equality Act.
The High Court decision
Swift J dismissed all of the claims, concluding that there were no legal errors in the Update; there were no breaches of the Equality Act 2006; and that, crucially, there was no breach of the Convention. The arguments put forward by Bridget Philipson were dismissed as incorrect and ‘difficult to follow’.
Swift J was clear that ‘the obvious albeit unspoken premise of the Workplace Regulations 1992 is the provision of private space for each sex for reasons of conventional decency’ and that ‘men and women should use conveniences in separate rooms, not together in the same room’. However, suitable alternative facilities may well be required, where failure to provide them would amount to unlawful gender reassignment discrimination.
Swift J rejected the contention that providing alternative facilities for trans people or providing mixed-sex facilities alongside single-sex facilities, would be ‘othering’ and amount to unlawful discrimination on the basis of gender reassignment.
The High Court held that an employer is not required to ‘police’ the use of such facilities but must provide facilities in line with the Regulations and adopt/apply a policy which should be based on biological sex. An employer would not comply with its obligations under the Regulations if it permitted a room for women to be used by trans women, who were thus biologically male, and vice versa. Any issues of breach of such a policy could then be dealt with in exactly the same manner as breach of any other workplace policy.
On the issue of “certificated sex” Swift J reached a very clear judgment, in line with the FWS decision and found that certificated sex under the GRA was displaced in this context. He was clear that the Workplace Regulations 1992 adopted a biological meaning of sex, not least because that is necessary to protect the privacy of women and men when using sanitary, changing, and showering facilities.
Misinterpretation or misreporting of part of the judgment
The EHRC Interim Update (now withdrawn) stated (in line with the Supreme Court decision and, therefore, correctly, in our view) that if trans women are permitted to use a female toilet, then that facility can no longer be considered ‘single-sex’. However, it went further by stating that, if trans women were permitted to use the toilet, then all biological males must be permitted to use that toilet also.
As part of the judicial review challenge, the GLP argued that, if a biological male was excluded from a ‘trans women inclusive’ female toilet, then he might be able to bring a claim of direct sex discrimination if other biological males (i.e. those who are trans women) are not also excluded.
Swift J acknowledged that, while each case would depend on its particular facts, such a claim might, in principle, be possible. There is scope to argue that such rule or practice (i.e. excluding a biological male from a ‘trans inclusive’ female toilet) would comprise ‘different’ treatment on grounds of sex. However, an employment tribunal would also need to be satisfied that this treatment was ‘less favourable’ on the grounds of sex for a direct discrimination claim to succeed and in many cases it would not be less favourable for a man to be excluded from a female-designated single sex space; for example because they would not want to be admitted and / or have their own male-designated facility / space etc.
In our view, there has been some significant misreporting of this aspect of the decision. Some commentators have interpreted Swift J’s decision as confirming that admitting trans women to female single-sex spaces (e.g. providing a ‘trans inclusive’ female toilet) would be compliant with the law.
However, nothing in the judgement says this. Swift J simply states that it may, or may not, be possible for a biological male to claim sex discrimination if he had been excluded (depending on circumstances as explored above). Importantly, there are other ways in which admitting trans women (biological men) to single-sex female spaces could be unlawful, including under the Workplace Regulations 1992, or by virtue of a female employee bringing a discrimination claim (as seen in the Darlington Nurses case) or a claim under the Human Rights Act.
Human Rights argument
In relation to the Human Rights aspects of the challenge, whilst Swift J assumed for the purposes of the case that a prohibition on trans-inclusive toilets could potentially comprise an interference with Article 8, he noted that ‘such a prohibition is of a different order to any of the issues considered to date by the Strasbourg court’ as previous cases had considered much more fundamental obstacles to recognition to trans status. He specifically made the point that the absence of a ‘trans inclusive’ toilet was not the same thing as the absence of any toilet at all. So, the scope to provide a gender-neutral facility meant that neither the Equality Act nor the Workplace Regulations 1992 would result in necessary interference with Article 8 rights. In any event, any such interference could likely be justified, taking into account the rights and freedoms of others.
Possible appeal
It should be noted that the Claimants indicated their intention to appeal the High Court decision soon after it was published on 13 February 2026; however, we do not consider any such appeal to have clear prospects of success. We shall keep you posted.
Conclusions and comments
There has been much possibly misleading reporting since this judgment was published, which does not serve anyone well. It muddies the waters for employers and service providers and may lead trans staff and service users to have expectations that may well not be met.
For the avoidance of doubt:
- the GLP challenge was unsuccessful on all ‘merits’ arguments
- the High Court found that the EHRC Interim Update was lawful
- nothing in the judgment means that the draft EHRC Code of practice on Bridget Phillipson’s desk is unlawful or should be withdrawn (although whether she chooses to approve it to be laid before parliament is a different issue)
- there was no finding that trans inclusive but otherwise ostensibly single sex spaces (whether workplace toilets or any other service provision/facility) are lawful
In her press round in late February, Bridget Phillipson confirmed that the Supreme Court decision on FWS was ‘crystal clear’ and employers should not wait for either Code of Practice to be updated before implementing the FWS ruling.
We agree that ‘watch and wait’ is not a sustainable position, particularly given the delay in the draft Code’s ratification and publication. Employers and service providers would be well advised to take steps to review their practices and policies without further delay.
Previous insights in our Sex Discrimination and Gender Reassignment Series
Sex Discrimination and Gender Reassignment Series: Darlington nurses successful in high profile sex discrimination/transgender rights case (Principal Associate, Louise Singh) 29 January 2026
Sex Discrimination and Gender Reassignment Series: Case Roundup – Lockwood (Partner, Emlyn Williams and Principal Associate, Suzanne Nulty) 19 December 2025
Sex Discrimination and Gender Reassignment Series: Case Roundup – Kelly v Leonardo (Principal Associate, Melanie Steed) 19 December 2025
Sex Discrimination and Gender Reassignment Series: Case roundup – Sandie Peggie (Principal Associate, Suzanne Nulty) 19 December 2025
For Women Scotland Series
For Women Scotland Series: Autumn update on the EHRC Code of Practice (Principal Associates' Matt Smith and Suzanne Nulty) 27 October 2025
For Women Scotland Series: Update on EHRC developments (Principal Associate, Suzanne Nulty) 26 June 2025
For Women Scotland Series: Supreme Court Decision: For Women Scotland v Scottish Ministers (Legal Director, Kerry Waters) 6 June 2025
What is the definition of a woman? (Partner, Sejal Raja) 23 April 2025
