Summary
Robin Moira White (Barrister) provides some guidelines on the inclusion of trans people in services and workplaces following the much criticised FWS Supreme Court judgment, demonstrating that exclusion is likely unlawful harassment under the Equality Act 2010.
SOME GUIDELINES: On the INCLUSION of transgender persons in SERVICES and WORKPLACES
Following The Supreme Court judgment in
For Women Scotland v Scottish Ministers [2025] SC 16
By Robin Moira White, Barrister-at-Law
Introduction
Just as I did when the awful judgment in For Women Scotland was handed down, I have not rushed into print with my thoughts. However, it appears that the UK Government is also not rushing to provide the new guidance, likely because it has realised how toxic FWS is to half a century of DE&I progress.
At the time of writing, the Equality and Human Rights Commission’s (EHRC) new draft Code of Practice on Goods and Services is with the Equality Minister Bridget Phillipson, but she, and the political great and the good are off to the party conferences. It seems unlikely that the EHRC Guidance will come before parliament until the late autumn and will then face a rather more difficult passage than secondary legislation usually enjoys.
The guidance addresses service provision locations, but does not cover workplaces, leaving major areas of uncertainty unresolved.
A vacuum can become an unfortunate breeding ground for rumour and misinformation.
The EHRC’s own commentary on the FWS, rushed out with indecent haste, stated that the judgment required sex-segregated toilets when it did no such thing. The most recent piece of misinformation is the suggestion being promoted by the FWS group itself that making an award for women to a trans woman is a breach of the Equality Act as interpreted in the case. Such awards are not covered by the Equality Act.
I have therefore felt it incumbent to publish something dealing with trans inclusion in service provision and workplaces. That inclusion usually comes down to toilets and (where provided) changing rooms.
I must make it clear that this paper represents my views. However, in a fluid legal landscape where significant litigation is likely to occur in the coming months and years, at least until the travesty that is the FWS Supreme Court Judgment is rectified. Discrimination cases are notoriously fact-specific, and therefore, this paper should not be taken as legal advice on any particular case. My clerks, of course, would be pleased to receive instructions to provide such advice, as they have increasingly been doing so.
Preliminary Thoughts
It seems clear to me that exclusion of trans people (persons with the protected characteristic of gender reassignment) from facilities in service provision locations and workplaces which match their gender-identity will constitute harassment, unlawful under section 26 of the Equality Act 2010.
By contrast, allowing trans people to use such facilities WILL NOT constitute unlawful harassment of other persons by reason of their sex, religion or protected beliefs (with certain caveats that I deal with below).
It is important to note that the Equality Act provisions are permissive, not prescriptive. Put another way, it is intended to be a shield, not a sword. For example, a religion can choose not to have a trans priest, but does not have to. Similarly, service providers can choose to provide sex-segregated services, but do not have to.
Possibly the only exception in principle to this is where such choices would be indirectly discriminatory or harassing of a particular group, as we will consider.
Harassment Generally
This is defined by s 26(1) of the Equality Act 2010 in the following terms:
‘A person (A) harasses another (B) if A engages in unwanted conduct which has the purpose or effect of violating B’s dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for B.’
Section 26(4)(c) makes plain that the test for harassment is one of objective reasonableness, and the case of Land Registry v Grant makes plain that the concept of harassment must not be ‘cheapened’ and is not there to deal with ‘trivial matters causing minor upsets’.
Harassment – for trans people?
Contemplate for a moment a trans person who transitioned years ago, after the societal, medical and personal struggle that is gender transition. They have been accepted in their affirmed gender for years. But now a service provider or an employer is to say to them that they cannot use the facilities appropriate to their gender, which they have also used for years without difficulty and must now either use the wrong gender facilities or gender neutral facilities, which deny the effectiveness of their gender change. How are they to explain that to friends or work colleagues?
Or contemplate a new workplace transitioner being supported by their employer. Are they really to be told they cannot use gender-appropriate facilities?
Article 8 of the European Convention on Human Rights requires a respect for private life.
It is very easy to see how the provisions of s26 are made out.
Harassment – for non-trans people?
A trans person uses a lavatory. Anything they do unclothed, they either do in a stall with a closed door or at a urinal with modesty partitions between the positions. They adjust their clothing and wash their hands in the communal area. They use the mirror to check and adjust their appearance.
How can that reasonably be harassment of anyone?
Policy formulation
It can, therefore, be seen that a policy which forces trans people into facilities inappropriate for their gender could be either unlawful harassment or unlawful indirect discrimination.
Service providers/employers would be very well advised to be clear about why they are following the policy that they are:
Harassment – special cases
Policy must deal with the common place but also obvious special cases, and an argument can be made that a woman who has suffered sexual assault, or is from a particular religious minority where sex-segregation is important, might have particular needs in using public facilities. How can their needs be met? It could be argued that not effectively meeting their needs would either be unlawful harassment or indirect discrimination because these are difficulties more likely to be faced by women.
These thoughts assume that any modern service provision location or workplace will have at least one single-cubicle, self-contained sanitary facility principally intended to meet the needs of people with disabilities, usually referred to as an ‘accessible’ toilet. That is, therefore, the solution for the small number of persons who require, or desire as a matter of choice, or find themselves in circumstances which make desirable facilities with additional privacy.
It may be that a relevant location also has one or more gender-neutral toilets which can similarly be so used. Even better.
Workplaces
In workplaces, the position is substantially the same. Toilets in workplaces are governed by the Workplace, Health, Safety and Welfare Regulations 1992 (‘the 1992 Regulations’). These Regulations were not considered in FWS, but they speak of providing separate facilities for men and women, except where a single lockable room facility is provided.
The 1992 Regulations enact European Council Directive 89/654/EEC. Neither the Regulations nor the Directive define ‘man’ or ‘woman,’ so it is European case law, particularly the jurisprudence of the Court of Justice of the European Union (‘CJEU’), to which we must look for guidance, interpreting the Charter of Fundamental Rights of the European Union.
This case law, from P v S and Cornwall County Council (Case C-13/94) and a number of subsequent cases that establish that ‘woman’ includes trans woman and ‘man’ trans man.
(One of the many failures in FWS was the Supreme Court’s failure to recognise the European underpinning of the Equality Act 2010 as recognised in the final sentences of the Explanatory Notes to that Act.)
Toilet Use – Before the Trans Panic
It is always worth remembering that before, the current ‘trans panic’ in which the toxic debate about facility use is being conducted, there always was some blurring to the lines on toilet use. Parents have been able to take their children (of whatever sex) with them into toilets. Anti-trans organisation ‘Sex Matters’ says that is OK until age 8. (Why that age, one might ask, and why are nine-year-old children suddenly dangerous or able to fend for themselves?) And bastion of media outrage, GB News, has gender-neutral loos (with communal hand washing) in its Paddington studio. If a ‘male cleaner at work’ notice is enough, then all the above show that the presence of trans people isn’t really the problem that some make it out to be.
Draft Trans Toilet Use Policy
(Applicable to Workplaces and Service-Provision Locations)
It is our policy that female toilets are available for trans women and male toilets are available for trans men.
Anyone requiring or desiring additional privacy may use the accessible toilet (*located…) or the gender neutral toilet (*located…).
Anyone not clear on this policy or who perceives it causes them a difficulty, please refer to (*who).
(*Complete as relevant to the location)
Changing Rooms
Many workplaces or service provision locations will not have changing rooms.
Those who do will need to consider the remarks about toilets above.
I regularly stay away from home for work purposes and have often booked a hotel with a swimming pool, a recreational activity I enjoy.
BUT. I would not wish to change or shower ‘communally’ as I believe would be the position for many individuals today.
If suitably individual changing (and where necessary showering) facilities can be provided, then all legal difficulties, from whatever direction, should be overcome.
Appendix – the FWS Judgment
I make no bones about it. The judgment in FWS is possibly the worst piece of jurisprudence from the Supreme Court that I have seen in 30 years of legal practice. It purports to divine the will of parliament as to the meaning of ‘sex’ in the Equality Act 2010, particularly for a person holding a Gender Recognition Certificate granted by the process established under the Gender Recognition Act 2004.
A simple task, one might think, given the clear statements made in parliament by the Ministers who steered both Acts through parliament. But no, those statements are offered no respect by the Supreme Court who then came up with their own definition of ‘sex’ found nowhere in either Act, being the sex recorded by the midwife on the birth of a child. Fixed and immutable. I list the problems with this judgment in this Appendix (they are legion) and, as a good legal friend recently remarked, it should ‘vanish in a puff of logic’ when properly looked at in future.
Unfortunately, until that happens, it remains UK law, however illogical and however harmful to the inclusion of trans people in UK society, which this judgment has contributed to the declaration of a red flag for genocide by the internationally respected Lemkin Institute.
One might have looked to the Labour government to defend the work of the Blair government in passing the 2010 Equality Act, but the political reality of 2025 is that the present Labour government is trying to be ‘more Reform than Reform’ and the prospect of some social justice for minority groups, especially trans people, seems to the writer to be very far off. It seems that we must wait for the Court of Human Rights in Strasbourg or a bold UK court to declare the SC judgment non-compliant with Human Rights law, or perhaps a different case coming before a better-informed division of the Supreme Court, before matters will improve.
The Supreme Court failed to:
- follow applicable European Law principles and directives (such as the Gender Directive (Directive 2004/113) and the Recast Equal Treatment Directive (Directive 2006/54),
- having identified the importance of the ECHR, provide any ECHR analysis as required by the UK Human Rights Act22,
- having identified the ‘Goodwin’ case, conduct any analysis of the compatibility of their judgment with that case,
- explain the logic of their judgment with regard to s7 of the EA 2010 and the definition of gender reassignment which specifically says that sex has physiological and ‘other’ aspects,
- explain the logic of their position with regard to s195 of the EA 2010 in that they justify the trans exclusion clause by reference to someone taking a performance enhancing drug,
- in their analysis of maternity and paternity rights to take account of the GRA provision stating that maternity and paternity are not affected by possession of a GRC,
- take account of the clear statements in parliament, recorded in Hansard, by the ministers with conduct of both the GRA and EA that the effect of a GRC would be that an individual would be dealt with under the EA as a sex corresponding to their certified gender,
- take account of the clear notes to the GRA 2004 that say, in terms, that a GRC holder would be treated in their acquired sex for Sex Discrimination Act purposes,
- recognise that ‘sex’, ‘man’ and ‘woman’ might have different meanings in different sections of the EA (as the authority they quote contemplates) and improperly limited themselves to these words only having one meaning across the whole EA when that act specifically brought together rights requiring different interpretations of those words,
- permit an intervention by two highly experienced trans individuals who might have been able to bring some balance to the case and prevent the above errors,
- recognise that it was only receiving submissions from trans-exclusionary lesbian groups and not from ‘mainstream’ lesbian groups who are much more trans-supportive and understand trans advocacy to form part of their role, taking their support beyond that within the general population.
Robin Moira White
Old Square Chambers
28 September 2025
