New rules for changing rooms and toilets in the UK

Britain’s new statutory equality Code sets out six conditions under which a service provider can lawfully run a single-sex toilet, changing room or other facility, and states that a service which admits people of the opposite sex ceases to be a single-sex service under the Equality Act 2010.

The Code, which took effect on Wednesday (5 August), treats single-sex provision as an exception to the general ban on sex discrimination rather than a default.

A provider must meet at least one of six conditions and must also show that single-sex provision is a proportionate means of achieving a legitimate aim.

The conditions cover services only one sex needs, services where a joint offering would not work as effectively, hospitals and places where users need special care, services likely to involve physical contact, and services used by more than one person at a time where someone might reasonably object to the presence of the opposite sex.

The Code gives women-only communal changing rooms at a sports facility as an example of that last condition.

Proportionality requires a balancing exercise. Providers must weigh the benefits of single-sex provision against the needs of those using the service and the impact on those excluded from it, and the Code names ensuring the safety of women and the privacy and dignity of women or men as examples of legitimate aims.

Factors that strengthen the case include whether users are likely to be in a state of undress, whether they can readily leave or choose an alternative, and whether the service connects to male violence against women.

The Code also directs providers to consider the needs of users with other protected characteristics, including religious observance.

Where trans users fit

The Code states that a trans man cannot use a men-only service because his sex is female, and a trans woman cannot use a women-only service because her sex is male, and that trans people are likely to be disadvantaged as a result.

Providers must consider whether that disadvantage outweighs the legitimate aim and whether a less intrusive option exists.

If a provider admits trans people to a service intended for the opposite sex, the Code says it can no longer rely on the single-sex exceptions, and a service offered to women and trans women is very likely to amount to unlawful sex discrimination against men, with equivalent reasoning applying in reverse.

A mixed-sex service can run alongside a single-sex one, but it must stay open to every user.

The Code works through a shopping centre that adds individually lockable toilet rooms alongside separate-sex facilities, a small advice centre that extends its accessible toilet for mixed-sex use, and a gym that keeps changing rooms tied to sex while providing a mixed-sex facility and offering private advice on which to use.

For services everybody needs, such as toilets, the Code says it is very unlikely to be proportionate to leave a trans person with no facility they can use. It also warns that providing only mixed-sex facilities, with no separate or single-sex option, could itself amount to sex discrimination or harassment against women.

On checking, the Code says a provider must objectively justify asking anyone about their sex and treats signage, promotional material and induction information as the primary way to communicate that a service is single-sex.

Where clear evidence shows people of the opposite sex accessing or trying to access the service, asking an individual to confirm their sex by proportionate means may be legitimate, but the Code cautions that appearance does not reliably establish sex, and that any request must be made sensitively and discreetly.

It describes the law in this area as complex and points providers towards independent legal advice.

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