ABSTRACT
In April 2025, the Supreme Court delivered judgment in For Women Scotland v The Scottish Ministers. The decision restated foundational principles of equality law, provided an overview of the fundamentals of statutory interpretation, and reaffirmed the importance of both sex and gender reassignment as protected characteristics within the Equality Act 2010 (EA 2010). The Court concluded that references to ‘sex’ and its cognates ‘man’ and ‘woman’ in the EA 2010 refer to biological sex, biological men, and biological women, respectively. The inescapable consequence of this is that the regulation of single-sex services, spaces or facilities within the Act concerns single-biological-sex services, spaces or facilities. Similarly, references to those who share the protected characteristic of sex are references to ‘persons of the same sex’. Following For Women Scotland, this can only mean persons of the same biological sex. While it has long been established that there is no legal entitlement to use single-sex services purely based on self-identification, the practical reality was that, before For Women Scotland, many duty-bearers ‘[felt] pressure into accepting de facto self-identification for the purpose of whom to treat as a woman or girl when seeking to apply the group-based rights and protections of the EA 2010 in relation to the protected characteristic of sex’. While adopting rules based on self-identification was never a legal obligation, meaning that the decision in For Women Scotland made no finding in this regard, the Court’s clear articulation of the importance of biological sex for the operation of single-sex spaces has resulted in many duty-bearers changing their policies to be based on biological sex, not self-identification. This has prompted some academic commentary suggesting that these changes were unnecessary, and it remains lawful to operate ‘trans-inclusive’ policies under which separate facilities are provided for men and women, but employees are free to use whichever facilities align with their gender identity. In the aftermath of the Supreme Court decision, the Equality and Human Rights Commission (EHRC) issued an interim update addressing this exact question. It warned that providing trans-inclusive facilities carries legal risks. This paper explores these risks, arguing that the High Court decision in Good Law Project v EHRC was correct to conclude that the provision of single-sex facilities for showering, changing, and sanitary use on any basis other than biological sex carries with it significant liability risk in discrimination law.
Foran, Michael, Single Sex Spaces in the Workplace Following For Women Scotland (May 26, 2026), Industrial Law Journal (Forthcoming).
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