We are still awaiting updated guidance from the Equality and Human Rights Commission for employers on how to manage single sex facilities following the case of For Women Scotland. The Supreme Court concluded that ‘sex’, for the purposes of the Equality Act 2010, means biological sex. New guidance has now been published for Services, Public Functions and Associations which makes clear that single sex spaces, when offered in the provision of services, must be used on the basis of biological sex.

But what does this mean for employers? The decision in For Women Scotland has been subject to extensive criticism as well as applaud. It remains a controversial decision which is likely to be challenged, and arguably raises more questions than it resolves. Trans individuals are entitled to protection from discrimination under the Equality Act 2010, but we have seen an increasing number of complaints from (mainly) women who consider that allowing trans women to use female spaces amounts to harassment. So what do employers do in order to protect the rights and freedoms of both groups without opening themselves to the risk of claims?

Whilst the press would have us believe that these are every-day occurrences, the fact remains that the number of trans people living in the UK is small. The majority of employers are perhaps unlikely to have to deal with the difficult balancing act between trans rights and the rights of non-trans employees who do not wish to use the same facilities as their trans colleagues. However, for those who are dealing with such situations, the answer remains – take advice. There is no one-size fits all solution, and each case will need to be carefully considered on its own merits.

If you are dealing with such a situation, the Employment Team at Tyr are very happy to assist.