EHRC says trans people must use toilets based on biological sex

The guidance sets out how public bodies, businesses and service providers should implement the Supreme Court’s April 2025 ruling that sex under the Equality Act refers to biological sex. It also states that providers should consider alternatives, including gender-neutral facilities, for people unwilling to use spaces aligned with their biological sex.

The code says services admitting trans people according to their lived gender would no longer qualify as single-sex and could face legal challenge.

However, it also outlines circumstances in which trans inclusion remains possible. Clubs and associations may structure membership around multiple protected characteristics, while healthcare settings are advised that excluding a trans man from obstetrics or gynaecology outpatient services because of objections from female patients would not be proportionate.

The government’s equality impact assessment acknowledges the guidance is likely to have a “negative” impact on transgender people but points to mitigating measures including third-space provision.

EHRC chair Mary-Ann Stephenson said the ruling required separate male and female facilities to operate “on the basis of biological sex” and called for broader discussion about practical solutions.

Trans+ Solidarity Alliance director, Alexandra Parmar-Yee, said the guidance was “a section 28 moment for this Labour government” and “worryingly similar to a US bathroom ban condemned by the UK Foreign Office in 2016”.

“The law here is a mess, and clearly many businesses will just go gender neutral to avoid the headache, but the government risks pushing trans people yet further out of public life.”