Following the Supreme Court’s decision in For Women Scotland in April 2025 on the definition of “sex” under the Equality Act 2010 (“the EA 2010”), there has been a lot of discussion regarding school policies on access to single sex facilities. The long-awaited Equality and Human Rights Commission (“EHRC”) updated statutory Code of Practice remains in draft form and at the consultation stage. To put that into context, the updated guidance following For Women Scotland was promised by the summer of 2025.
For schools, the DfE’s draft non-statutory guidance for Gender Questioning Children, issued in December 2023, has similarly seen little to no progress and has since been abandoned. On 12 February 2026 the DfE issued a Policy Paper confirming that they “will not be publishing standalone guidance for schools and colleges on gender questioning children, but propose instead to include this content in KCSIE so that children’s wellbeing and safeguarding are considered in the round, and so that schools and colleges can easily access this information in one place”. This lack of guidance from both the equalities regulator and the DfE leaves schools, both as employers and service providers, with a lack of clarity on the current law.
Over the last six months, a number of employment tribunal (“ET”) decisions have considered the issue of single sex facilities. Whilst it was hoped that these may provide some clarity, the outcomes in each case have been different and have further complicated the legal and practical position.
These judgements were followed by a judicial review into the lawfulness of the interim guidance published by the EHRC in April 2025, with the High Court finding in February 2026 that the guidance was lawful.
In this case update, our Schools HR team consider the recent case law post For Women Scotland and the potential impact for schools and MATs.
Key Legal Framework
The EA 2010 makes it unlawful to discriminate against someone because of a protected characteristic. It applies to the workplace, in the provision of services, and in wider society. There are nine protected characteristics under the EA 2010, including the protected characteristics of gender reassignment and sex.
A person has the protected characteristic of gender reassignment if they are proposing to undergo, are undergoing or have undergone a process (or part of a process) of reassigning their sex by changing physiological or other attributes of sex. People with a Gender Recognition Certificate (“GRC”) will have this protected characteristic, but it is not a specific requirement.
The protected characteristic of sex under the EA 2010 was clarified in the case of For Women Scotland by the UK Supreme Court (“the UKSC”). The UKSC ruled that the meaning of “sex” under the EA 2010 relates to biological sex, as opposed to legal sex or lived gender identity. This applies regardless of whether an individual has obtained a GRC or not. The UKSC did emphasise that its decision did not remove the protections afforded to trans people under the EA 2010, noting that they were protected from discrimination on the gender reassignment ground, and could invoke the provisions on direct discrimination and harassment, and indirect discrimination because of sex.
The EA 2010 prohibits a variety of conduct, including harassment, victimisation and direct and indirect discrimination. Broadly, harassment involves unwanted conduct, which is related to a protected characteristic, and which has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the individual, or of violating their dignity. Discrimination involves treating someone less favourably as a result of a protected characteristic, in a way which cannot be justified. Discrimination is indirect when the rule or practice applies to everyone but has a worse effect on someone because of a protected characteristic.
The Workplace (Health, Safety and Welfare) Regulations 1992 (“the WHSW Regulations”) sets out the general duties on employers to provide safe workplace environments. Regulation 20 of the WHSW Regulations requires employers to provide “suitable and sufficient sanitary conveniences” at work. The Regulations specify that conveniences shall not be suitable unless there are separate facilities for men and women, except where each convenience is in a separate lockable room. Regulation 24(2) of the WHSW Regulations also provides that where changing facilities are needed because workers wear ‘special clothing’ and cannot for reasons of health or propriety be expected to change in another room, ‘the facilities shall not be suitable unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety.’ The For Women Scotland judgement did not consider the WHSW Regulations.
ET Case Overviews
1. Kelly v Leonardo UK Ltd
The Claimant (“MK”) was a female engineer who worked at the global security company, Leonardo, at its Edinburgh office. Leonardo adopted a policy in June 2023 (which pre-dated For Women Scotland) where access to single sex staff toilets was based on staff gender identity rather than biological sex. MK, who held gender critical beliefs, disagreed with the policy and commenced ET proceedings, claiming that the policy permitting access to toilet facilities based on gender identity amounted to harassment, as well as direct and indirect discrimination on the ground of sex.
In a judgment dated 24 November 2025 (which post-dated For Women Scotland) the ET dismissed all of the claims, holding that the toilet facilities policy was lawful.
In making their decision the ET considered the employer’s compliance with the WHSW Regulations and the requirement to provide separate rooms containing toilet facilities for men and women, as set out in Regulation 20(2). The ET took the view that this requirement related to requirements of the physical estate only, and was not a duty to control access to those spaces. Any duty to control access fell under the broader duty on employers, which did not require them to control access based on biological sex. In fact, the ET concluded that an approach based on biological sex or GRCs would be ‘practically unworkable’ and may be contrary to the ‘primary purposes of the Regulations.’ Overall, the ET noted that Leonardo had provided a sufficient number of compliant toilets, including a number of single occupancy toilets.
When it came to harassment, the ET did not accept that Leonardo’s policy had the effect of violating MK’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, as it had no material impact on her use of the toilet facilities. It was not enough that MK perceived that her gender critical beliefs were being sidelined. Similarly, the ET dismissed claims for indirect discrimination. The ET was not convinced that the policy put women at a particular disadvantage compared to men. Even if there had been a disadvantage, the tribunal was satisfied that it could be objectively justified as a proportionate means of achieving a legitimate aim, namely treating transgender employees lawfully and with respect and dignity, as well creating an inclusive workplace environment.
2. Sandie Peggie v Fife Health Board and another
The Claimant (“SP”) was a staff nurse, who worked in the emergency department at Kirkcaldy Hospital. She made a complaint after becoming aware that a transgender woman (“BU”), who was a junior doctor at the hospital, was using the female changing rooms. SP was informed that the policy across the NHS was that a transgender member of staff had the right to use changing rooms that aligned with the gender they identified as having and was advised to use an alternative changing room. SP was later suspended following an incident that took place in the changing rooms, where she was accused of bullying BU. It was ultimately decided that there was insufficient evidence for action to be taken against SP, and she returned to work on a different rota to BU. SP brought claims against Fife Health Board for harassment, victimisation and discrimination. She also brought the same claims against BU in their personal capacity.
In a judgment dated 8 December 2025 (post-dating For Women Scotland) the ET upheld the claim of harassment against the Health Board, but dismissed all other claims.
The ET considered the judgement in For Women Scotland and concluded that it did not mean that it was inherently unlawful for transgender women to access female changing rooms. In order to make a lawful decision on the use of single sex spaces a test of objective justification had to be applied by employers, which required a number of factors to be weighed in the balance. This included the views of other staff, the stage of transition that the transgender person had reached and the provision of alternative facilities.
Applying the test, the ET found that the permission provided by the Health Board was lawful at certain points during the timeline of the case but not others. In particular, once SP has raised her initial complaint, the ET found that it was no longer lawful for BU to be allowed access to the female changing rooms. The permission became lawful again when SP was put on a different rota to BU so that they would not be using the changing rooms at the same time.
The ET held that the Health Board had harassed SP by failing to revoke BU’s permission to use the changing room on an interim basis after SP had complained. The ET also found that the Board had harassed SP in the way that they had investigated the allegations against her, including the time that it took for the process to be concluded.
The ET dismissed claims of indirect discrimination as SP had not provided sufficient evidence of group disadvantage towards women. The ET also dismissed all claims raised against BU personally. It was held that nothing that BU said or did in the incidents complained of could have reasonably be perceived as harassment, given that the doctor was simply acting on the basis of permission given by her employer to access the relevant facilities. The ET also found that a number of the comments made by SP were impermissible manifestations of her belief and amounted to harassment of BU.
The ET did not consider that the WHSW Regulations were of any assistance in determining the claims and declined to make a decision how to construe the terms ‘men’ and ‘women’ within them.
3. Bethany Hutchison and others v County Durham and Darlington NHS Trust
The Claimants in this case were a number of female nurses who worked at Darlington Memorial Hospital. The Trust operated a Uniform Policy, which mandated that staff had to change in and out of their uniform on hospital premises. A number of employees raised concerns that a transgender employee (“R”) was permitted to use the female changing rooms. The Trust had a Transition in the Workplace policy, which allowed transgender staff to use the changing rooms that corresponded with their affirmed gender, rather than their biological sex. There were no alternative facilities to the single sex changing rooms provided.
The nurses brought claims to the ET, alleging that the Trust subjected them to harassment and indirect discrimination as a result of their policy for facilities access and the manner in which staff concerns were handled. They also alleged that R themselves had harassed the claimants, in a manner that made the Trust liable.
In a judgment dated January 2026 (post-dating For Women Scotland, Kelly and Peggie) the ET upheld claims of harassment and indirect discrimination against the Trust, but dismissed the claims against R personally.
With regards to harassment, the ET held that the act of permitting a biological male to use the female changing rooms was unwanted conduct from the perspective of the Claimants and gave female workers no “real or effective choice in the matter of where they get changed.” This had the effect of violating the dignity of the Claimants and creating a hostile, humiliating and degrading environment for them. The ET also found that the Trust had subjected the claimants to harassment by declining to address their concerns about use of the changing room by R and later providing inadequate alternative facilities for those who objected to sharing the changing room. Within the harassment claim, the ET considered the WHSW Regulations and determined that the policy of permitting transgender women to use the female changing rooms was not lawful under Regulation 24(2).
The ET also upheld the indirect discrimination claim, finding that the policy placed women at a particular disadvantage, as they would be more likely to experience feelings of distress, fear or humiliation by being required to share a communal changing room with a member of the opposite biological sex. This practice could not be justified as a proportionate means of achieving a legitimate aim as a lesser measure was clearly available to the Trust, namely, to provide R with alternative, suitable and dignified facilities.
The ET dismissed the claims against R personally, as it made the distinction between the conduct of the individual transgender employee in using the changing room and the Trust’s conduct in permitting them to use it in the first place. It was only with regards to the latter conduct that a claim for harassment could succeed. Much like in Peggie, R was simply accessing facilities in line with the employer’s policy so could not be taken to have harassed the claimants by so doing.
High Court Case Overview: The Good Law Project Limited and others v Commission for Equality and Human Rights
On the 13 February 2026 the High Court ruled on a judicial review challenge brought by the Good Law project and three individual claimants to the interim guidance published by the EHRC in April 2025 following the judgment in For Women Scotland. In particular, the guidance made the following statement:
“In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. Where changing facilities are required under the regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities such as separate lockable rooms.”
Prior to the High Court judgement, the EHRC had removed the guidance from its website, as it has submitted an updated Draft Code to the government for approval. Nevertheless, the court was still willing to consider the arguments raised by the individual claimants and dismissed all of their claims, confirming that the guidance was lawful.
The High Court noted that neither the EA 2010, nor the WHSW Regulations provides a comprehensive code on when or in what form facilities must be provided and who may use them. Each of the provisions considered in the interim update provided a ‘floor’ for the provision of facilities but not a ceiling. The court provided commentary on the legal requirements for facilities provision in the workplace and confirmed that the EHRC had accurately summarised the law in their interim guidance.
The court confirmed that WHSW Regulations require “suitable and sufficient” facilities to be provided, including toilets and sometimes changing facilities and showers. This could be fulfilled by an employer providing separate facilities (e.g. separate single-sex male and female lavatories) or by providing the facilities in a room which may be locked from the inside and may be used only by one person at a time. The Court rejected the argument that the WHSW Regulations speak only to the provision of facilities and not to the manner in which these facilities could be accessed (contrary to the position in Kelly). They held that this would disregard the obvious purpose of the Regulations, which is the provision of a private space for each sex for reasons of conventional decency.
The court concluded that references to ‘men’ and ‘women’ in the WHSW Regulations have their biological meaning. Consequently, if a workplace decided to fulfil their obligations under the Regulations by providing single sex facilities, access must be based on biological sex. This applies regardless as to whether a transgender individual has a GRC or not. The court rejected the argument that this required employers to ‘police’ how lavatories and other facilities were used, as employees concerned would know what was expected of them once a policy was in place.
In addition to this, the court noted that whilst employers have to comply with the WHSW Regulations, they also must comply with their obligations under the EA 2010, including the obligation not to discriminate on the ground of gender reassignment. The court found that in most cases this will mean ensuring that transgender individuals are not required to use toilet facilities that correspond with their biological sex, by providing facilities that go beyond the ‘floor’ of those required under the WHSW Regulations. This could include providing single lockable toilet cubicles or unisex toilets which transgender employees can use. The court was of the view that requiring transgender employees to use an accessible or unisex toilet was unlikely to be less favourable treatment.
Commentary and Practical Considerations for Schools
It should be noted that the ET cases highlighted above are first instance decisions and are not binding on any future tribunals. It is expected that one of the parties in each instance will appeal the judgements and that all of the appeals will be heard together by a court of higher authority whose decision would bind lower courts. The Good Law Project and the individual claimants have also filed an appeal to the High Court judgement. Until this appeal takes places, any ET hearing related cases in the future will be bound by the Good Law Project judgement. In particular, it should be noted that the High Court’s findings explicitly supersede the findings in Leonardo as it relates to the WHSW Regulations. This suggests that future ET rulings are more likely to align with the approach in Hutchison, although any outcomes will be case dependant and fact specific.
Schools and MATs can place themselves in the strongest position possible by incorporating the following considerations into their policies and practices regarding facilities access:
Compliance with the WHSW Regulations: To ensure compliance with the WHSW Regulations and the law as it currently stands following For Women Scotland, employers need to provide one of the following:
- Separate single-sex male and female toilets (where access is based on biological sex and not gender identity): or
- Toilet facilities in a room which may be locked from the inside and may be used only by one person at a time (the wash basin must also be contained within the lockable room).
This also applies to washing and changing facilities, where these facilities are needed.
Choice of facilities: Where staff use option (1) above, schools must ensure that additional facilities are provided to transgender staff to ensure that they are not forced to use facilities which align with their biological sex, as this may violate their dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for them. This can include, for example, alongside single-sex facilities, the provision of gender neutral/unisex facilities, or single lockable toilets (intended for use by one person at a time). This provision of choice concurs with the recent ET decisions, all of which have signalled the importance of providing a range of facilities. In Hutchison, for example, the tribunal looked unfavourably upon the fact that alternatives to single-sex facilities did not exist within the workplace. Providing alternative facilities prevents transgender employees from being forced to use a space which does not accord with their gender identity. It also provides a space for gender-questioning and non-binary individuals, which is conducive to an inclusive workplace.
Communication and Consultation: As with any policy changes, it is important that consultation is carried out and that any decisions are communicated sensitively, ensuring that positive messages about inclusivity are maintained. Ensuring that some form of consultation takes place indicates that the employer has considered the impact of their policy and builds a positive culture which may limit staff resistance or complaints. Equally when concerns arise, schools should ensure that they have effective processes in place to ensure that the views of employees are heard and escalated where necessary. In Hutchison, the ET repeatedly identified that the employer had failed to take the central concerns of the claimant seriously throughout. In both Peggie and Hutchison, successful harassment claims were made out as a consequence of a poor and inadequate process of dealing with the concerns that the claimants had raised. Employers need to strike a careful balance between ensuring that views, including those of a gender critical nature, are not dismissed, whilst ensuring that any discussions do not create a hostile environment for those with protected characteristics or who hold opposing views on the subject matter. Schools should also be alive to their public sector equality duties.
Seek Specialist Legal Advice: Schools and MATs are advised to take expert legal advice when navigating issues related to facilities access and other related queries, including in relation to changes to existing policies and procedures. Governors and trustees should understand the decision in the For Women Scotland case and the subsequent ET and High Court decisions, as they are ultimately responsible for ensuring that the school or MAT is complying with its legal obligations. It is critical that adequate specialist legal support and back up is available to all people who are responsible for dealing with these complex and nuanced issues, particularly if challenges are made.
Other considerations: It should be noted that the judgements explored in this briefing focus on the provision of facilities for staff members, rather than pupils. Duties to provide separate facilities for pupils can be found in the Education (Independent School) Standards Regulations 2014. These Regulations differ from the WHSW Regulations and arguably place clearer obligations on the need for separate facilities. There are also a number of additional considerations linked with the provision of pupil facilities, including safeguarding and the inability of students under 18 to have obtained GRCs. Further information on considerations when it comes to pupils, can be found in our briefing note on the For Women Scotland decision here: https://wslaw.co.uk/case-study/supreme-court-ruling-in-for-women-scotland-ltd-v-the-scottish-ministers-what-schools-need-to-know/
For advice on any of the issues discussed in this case update, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690.
For any parent issues, pupil support or safeguarding queries, please contact our dedicated School Support Service helpdesk on Schoolsupport@wslaw.co.uk or 0345 070 7437.
This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors. It is intended only to summarise the decisions of the courts and highlight potential areas of conflict. The issues arising from this area of law are complex and multi-facetted. Schools should take advice on their individual circumstances before making any decisions or implementing any change arising out of the judgments in For Women Scotland or any of the cases discussed in this case update.