Toilets, Changing Rooms and Showers In Workplaces and Service-delivery Locations

Toilets, Changing Rooms and Showers In Workplaces and Service-delivery Locations

A short paper and draft policy

By

Robin Moira White

 The Landscape

This area has become contentious with the increasingly desperate attempts to banish transgender people from the ability to live peacefully in UK society.  The nonsensical Supreme Court judgment in For Women Scotland v Scottish Ministers^[1] in April 2025 fanned the flames of fanaticism in this area, and the case has been used to suggest forcefully has been made quite strongly that its effect was to require the banishment of trans women from all female spaces (despite the case not saying that at all).

However, more recently, two cases: Kelly v Leonardo Ltd^[2] in November 2025 and Peggie v NHS Fife and Upton^[3] in December 2025 have, as Obi-Wan Kenobi might have said, brought a little more balance to the force. Appeals are underway in both cases, but the backlog at the Employment Appeal Tribunal means that they are unlikely to be heard in 2026.

It is hoped that the appointment of Mary-Anne Stephenson to the Chair of the UK Equalities and Human Rights Commission, and the turnover of some of its Commissioners, will allow the organisation to regain the respect it lost under the leadership of Baroness Falkner of Margravine.  What seems inevitable is that the draft guidance on the Equality Act 2010 produced under Baroness Falkner’s regime, passed to Equalities Minister Brigit Phillipson in September 2025, will need to be referred back to the EHRC in the light of both the two cases mentioned above and its general uselessness if the extensive leaks of it to the media are correct.

 Rights in Play

When toilets, changing rooms, or showers in workplaces or service provision locations are considered, a number of Equality Act protected characteristics are at play, including sex, gender reassignment, and religion / belief.

It is important to say that there is no hierarchy among these rights, all have equal importance.

In short, some folk may complain if they are not permitted to avoid the opposite sex, people with the protected characteristic of gender reassignment may complain if they are required to use facilities inconsistent with their gender identity or are forced into some third space and those whose tenets of their religion or belief make mixing with members of the opposite sex difficult or impossible add a further layer of complexity to the minefield that employers or service providers must navigate.  These complaints can variously be analysed under the Equality Act 2010 as direct discrimination, indirect discrimination or discriminatory harassment, and, if the location management handles matters badly, discriminatory victimisation can come into play.

A further legislative overlay, in workplaces, comes from the Workplace (Health Safety and Welfare Regulations 1992^[4] and the Building Regulations 2010 Document T dated 2023.

‘Document T’ may be summarised as saying that in any large new building or refurbishment, separate gendered facilities must be provided as a first consideration.  Individual or gender-neutral facilities can be provided, but as an extra,

The 1992 Regulations were extensively considered in Leonardo and Peggie and the conclusions the judges came to were that there was a duty to provide gendered facilities but not to police them or to exclude trans people from the facilities appropriate to their gender (which would be likely to be gender reassignment discrimination).

So how do employers or service providers negotiate this minefield?

The answer is quite simply-stated for very small and very large locations, say 1-25 employees, and over 100 employees (and equivalent size businesses), less clear for those in the middle.

Let us focus on toilets first.  We will come to the additional complexities posed by changing rooms and showers.  It is hard to imagine an entity without toilets, changing rooms are less common and showers even more so.

The Small

In a very small business or service delivery location, like a café, there may only be one toilet, or if there are two, even if they are designated ‘male’ and ‘female’, they are likely to be single-user, self-contained, so no-one ever shares with anyone, and all the difficulties fall away.

 The Large

In very large locations, there are likely to be separated male and female facilities with multiple stalls in each as well as urinals in male badged facilities.  The Leonardo case decided that use of such female-badged facilities by trans women was not discrimination of Ms Kelly.  However, to be completely sure to avoid such difficulties the provision in addition of additional single-use facilities, also containing washing facilities would seem to avoid any discrimination claim because anyone who wanted to be certain that they would not be in the presence of other persons of any kind, could have that certainty.  Problem solved for everyone, it would seem.  It must be remembered that gendered toilet facilities have never been rigidly ‘sexed’ otherwise the presence of cleaning staff of the opposite gender, minor children, older vulnerable children and the like (and a very few trans people) would have made the difference.  In a large establishment, the single-use gender neutral facility should not also be the accessible facility, as one may anticipate its regular use.

The Inbetweenies

In establishments between the very small and the very large, a degree of sense needs to be exercised.  Could, for example, the accessible toilet provides the ‘extra privacy toilet for those who want or need to use it without disadvantaging the disabled persons for whom it is principally provided?  Could the provision of washing facilities inside one stall solve any concerns?  Practical considerations come into play.

Extra Privacy v Ghetto

It is important to say that a principle of equality law is that, where solutions need to be sought, finding the solution with the least impact on the relevant group or groups is important.  That is why an ‘extra privacy’ solution available to all is a clear winner over banishing any group to particular facilities.

Changing facilities and showers

Which of us wishes to be naked with strangers?   As the extent of any form of collective nakedness increases, a tribunal is increasingly likely to find that providing the separation desired is more important to prevent findings of discrimination.  My chambers have two individual shower rooms, each behind a lockable door with a changing area.  Providing the means for those who want it to enjoy the privacy they desire is the way to avoid claims.

Other Rights

All persons involved are likely to have their rights arising under the European Convention on Human Rights, particularly Article 8 – respect for private life – engaged.  Other relevant rights arise under the General Data Protection Regulations where sexual identity, especially for a transgender person will be sensitive data.  Revealing the sexual identity of a transgender person with a Gender Recognition Certificate granted under the 2004 Gender Recognition Act 2004 is a criminal offence under s22 of that Act.  A prescriptive policy that says transgender people may not use particular facilities risks trespassing on these rights.

Early transition

Under the terms of the Equality Act, a transgender person has the protected characteristic of gender reassignment from the moment they approach their employer with a settled intention to transition.  They may, of course, be before there is any outward obvious sign or transition, and it is normal for there to be some discussion about a transition process. That does not mean they have an immediate right to use affirmed gender facilities, and the old case of Croft v Royal Mail^[5] still appears to have some validity, insofar as it is right for an employer and employee to agree how and when such a change of use will occur.

 Policing

All suggested policies with prescriptive use that we have seen run into the same difficulty: policing.  Are employers or service-providers expected to provide toilet police or start disciplining long-term transgender staff who have used facilities without difficulty for many years?  We know from the experience of so-called ‘bathroom bills’ in the United States that it is gender non-conforming cis women (of which there are many more than trans women) who are subject to challenge far more often than trans women.  Expecting trans men to use female facilities just makes chromosomal sex-separated facilities a farce.

The ’extra privacy’ solution we set out here is self-policing and practical.  It does not offend Convention. GDPR or GRA rights.

Policy and Pressure-valves.

Whatever choices a workplace or service provider makes, there should be a considered and published policy, if they are above the very small as set out above.  A crucial part of that policy should be that disputes or difficulties should be raised with management, not worker to worker or customer to customer.  That, of course, obliges management to act timeously and thoughtfully if trouble is to be avoided.  This lesson emerges in particular from the Peggie case, where the Claimant lost 43 of her 47 separate heads of complaint, including all the complaints about the principle a trans person being in her workplace changing facility but succeeded where the employer had been laggardly in responding to her complaints.

We have provided a draft example policy for a large employer dealing only with toilets.  The complexities of employers with changing rooms or showers seem to us so fact-specific that careful crafting of specific policies will be necessary and will be necessarily fact-specific, but we hope that the principles are clear.

Conclusion

The one certainty that emerges is that blanket exclusion of trans people or their banishment to ‘third spaces’ is very unlikely to be lawful.

RMW 15.12.25

APPENDIX – DRAFT POLICY, LARGE EMPLOYER (Toilets only)

XYZ Ltd – STAFF HANDBOOK

Toilet Policy

XYZ House, 222 Broad Street, City of London

Provision

Toilets badged female (5 cubicles) and male (3 cubicles and 3 urinals) accessible from the working area (canteen on the 8^th floor) are provided on all floors of XYZ House except the ground floor (reception).

Two gender-neutral (individual) self-contained toilets and one accessible toilet are provided in the lift lobby on each floor other than the ground floor (reception).

On the ground floor one gender-neutral (individual) self-contained toilet and a ‘changing places’ enhanced accessible toilet is provided.

Use

Staff and visitors may use any toilet which matches their gender presentation.  Non-binary staff may choose which toilet to use.

Staff with an enhanced need or desire for privacy have the individual self-contained toilets readily available to them.

Concerns

Any staff member who is concerned about the toilet use of any person should approach their line manager or any member of human resources at grade S3 or above.  Concerns which require immediate action should be reported to building security.  In no circumstances should staff attempt to challenge anyone giving cause for concern themselves beyond asking for their name if it is not readily ascertainable from their name badge or building pass.

Any concerns raised will be dealt with timeously.

[1] [2025] UKSC 16

[2] Edinburgh ET 8001497/2024

[3] Dundee ET 4104864/2024

[4] SI 1992/3004

[5] [2002] 1160 00 3009 (EAT), 2003 EWC Civ 1045 (CA)

Toilets, Changing Rooms and Showers In Workplaces and Service-delivery Locations