Employers across the UK may soon face significant changes to how they manage access to single sex spaces, after reported new equalities guidance indicated that organisations could exclude transgender people based on appearance or raised concerns.
The guidance has not yet been published by the Equality and Human Rights Commission and remains under review by ministers, leaving organisations with uncertainty about how to apply April’s Supreme Court ruling that sex, for the purposes of the Equality Act, is defined by biology.
The unpublished document has reportedly been with ministers for almost three months. According to The Times, senior figures in Whitehall believe final publication has been delayed to avoid political fallout. This has resulted in hospitals, councils and private employers continuing to interpret access rules differently while awaiting official clarification.
Growing employer uncertainty
The Times reported that the yet unreleased guidance sets out how hospitals, gyms, leisure centres and other providers of single sex services could question a person’s presence in a space if staff or service users raise genuine concerns. Decisions would be based on appearance, behaviour or doubts about the accuracy of assurances given about a person’s sex.
The draft also states, according to The Times, that transgender people could be excluded if there is a justified reason to believe they should not be using the service, but organisations would need to weigh all relevant factors before taking action.
Earlier drafts reportedly suggested that service providers could ask to see documents such as birth certificates or gender recognition certificates. The Times reported that this suggestion has been removed and that the final document believes requests for documentary evidence would rarely be proportionate. It notes that official records are not consistent indicators of sex because markers on passports and driving licences can be changed without a gender recognition certificate.
The guidance is expected to reinforce that providing single sex services is a legitimate aim where privacy, dignity or safety is involved. It also acknowledges practical constraints. The Times reported that the document highlights the difficulty of creating alternative provision when buildings, service design or financial pressures make it unreasonable or impossible to offer additional facilities.
HR and workplace policy
If the published guidance reflects the material reported, the effects for employers could be far reaching. Single sex considerations extend well beyond high street premises. The code covers any organisation that provides services to the public, including government departments, hospitals, policing, prisons, hotels, leisure facilities and private companies delivering public services under contract.
It raises several operational issues for HR teams. Policies that govern access to changing rooms, showers, uniforms, accommodation and other gendered spaces may need review. Staff training would also need to evolve to ensure employees understand when sensitive questioning is permissible, how to handle concerns raised by service users and how to document decisions securely.
Privacy is another area of risk. Even if the new code tells organisations not to request documentary proof of sex, asking questions about a person’s sex is still intrusive. Employers may need new protocols for data minimisation and secure storage, particularly if concerns are raised repeatedly about the same individual.
Employee relations also come into play. The Times reported that the guidance may allow exclusion of transgender people from single sex services even when their biological sex matches the space in question.
Transgender men who are biologically female could, for example, be barred from women’s spaces if they are perceived by others as men. Such scenarios could create confusion for staff as well as distress for employees affected by these decisions. Observers say HR departments may need to prepare for grievances, complaints or claims if staff believe decisions have been taken unfairly or without clear justification.
A complex legal and political landscape
The Times reported that ministers are still considering the document and that devolved administrations must also be consulted before publication. Government figures quoted by the paper maintained that the review process is long and complex. They said they wished to ensure the guidance is legally sound rather than presented prematurely.
The political environment has added further tension. The Supreme Court ruling earlier this year established that sex in the Equality Act refers to biological sex, not gender identity. Labour has publicly stated that the ruling should be implemented fully.
At the same time, The Times reported that government lawyers recently argued in court that access to single sex lavatories should be determined case by case, which the judge described as inconsistent with the Equality Act. These mixed signals have contributed to the sense of uncertainty for employers waiting for a clear framework.
The paper also reported that Labour MPs have expressed concerns that the new guidance could create competing rights and generate significant compliance costs for organisations. Some figures within the Equality and Human Rights Commission have expressed frustration at the delay, arguing that many employers may already be applying the law incorrectly.
What employers should do now
Until the official guidance is published, experts say employers should avoid making major policy changes based on leaked or reported material. But, they suggest, HR teams can take preparatory steps that are consistent with existing law and good practice, including:
- Reviewing current single sex space policies to ensure they comply with the Equality Act as clarified by the Supreme Court.
- Training managers to handle sensitive situations with care and professionalism.
- Developing clear internal routes for raising and resolving concerns.
- Ensuring privacy and dignity are protected for all employees and service users.
The forthcoming guidance, whenever it’s formally released, is set to become one of the most significant updates to Equality Act practice in more than a decade. HR teams will need to be ready to interpret it carefully and apply it in ways that protect both legal compliance and workplace inclusion.
