How to deal with your employer’s excuses

1. “The law is not clear”

They say: It’s a complex, evolving area of law. There is no case law. For Women Scotland was only about the Equality Act 2010.

Why this is no excuse: Parliament passed the Equality Act in 2010. It has been in place since then. The meaning of sex in the act was clarified by the Supreme Court when it gave its judgment on 16th April 2025. There is nothing to wait for. The judgment is very clear. Anyone in doubt should read it.

2. “We are waiting for the EHRC guidance”

They say: The Equality and Human Rights Commission (EHRC) has consulted on its updated code of practice, and this has yet to be laid before Parliament. 

Why this is no excuse: The code of practice for services, public functions and associations does not cover workplaces or employers. They are subject to the 1992 Workplace Regulations, which require adequate single-sex facilities, as explained here. In any case, the EHRC code of practice does not change the law, which has already been spelled out by Parliament and the Supreme Court. 

3. “The law is being challenged”

They say: There are ongoing court cases relating to workplace facilities. 

Why this is no excuse: The law is always being applied in legal cases. Employment tribunals are hearing cases every day. This does not mean the law can be ignored or considered moot. Tribunal results can even appear contradictory, as in the cases of Sandie Peggie, the Darlington nurses and Maria Kelly against Leonardo, but this does not mean that other employers can afford to ignore the law. 

Sandie Peggie won her case for harassment against NHS Fife because the hospital did not respond adequately to her complaint about having to share the women’s changing room with a male colleague, but the judge did not say that it was unlawful to let the male doctor use the women’s changing room. Maria Kelly lost her case largely on the basis that no-one else had objected to trans-identifying men using the women’s toilets. These two cases are being appealed. 

The Darlington nurses won their case that it was harassment by the hospital to allow male colleagues into the women’s changing room. The judgment, delivered after the Peggie and Kelly results, contradicts the Peggie judgement when it states:

“We do not consider there to have been any rights of those employees with the protected characteristic of gender reassignment that ‘competed’ with those who have the protected characteristic of sex.”

As first-instance employment-tribunal judgments, the decisions in Peggie v NHS Fife and Kelly v Leonardo apply only to the specifics of those cases and do not set legal precedent. A decision at the next stage, the Employment Appeal Tribunal, will set a binding precedent. These appeals are likely to be heard in late 2026 or early 2027 with judgments some months later. 

Future judgments in higher courts (such as from the Sandie Peggie and Maria Kelly appeals) should provide reassurance for employers that they are complying with the law by providing separate-sex facilities with clear rules, but the basic framework of the Equality Act 2010 and the Workplace Regulations 1992 can already be read and are clear. 

The Good Law Project lost its judicial review of the EHRC’s interim update in the High Court. The judgment confirmed that the EHRC guidance was an accurate statement of the law and GLP’s challenge was entirely dismissed. 

Lower-court challenges cannot overturn the law. The Equality Act was passed by Parliament in 2010 and clarified by the Supreme Court judgment in the case of For Women Scotland v Scottish Ministers on 16th April 2025. The 2026 High Court judgment in GLP v EHRC cemented this further. 

The Supreme Court says in its summary of reasoning (at paragraph 265):

“It is important that the EA 2010 is interpreted in a clear and consistent way so that groups which share a protected characteristic can be identified by those on whom the Act imposes obligations so that they can perform those obligations in a practical way.”

“There are other provisions whose proper functioning requires a biological interpretation of ‘sex’. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others.”

Neither a Supreme Court nor a High Court judgment can be undermined by a lower court such as an employment tribunal.

4. “Gender reassignment is a protected characteristic therefore…”

They say: Gender reassignment is a protected characteristic in the Equality Act, therefore people with this characteristic must not be discriminated against. 

Why this is no excuse: Protection from discrimination does not mean granting access to opposite-sex facilities. The legal position is that while trans individuals are protected under the characteristic of gender reassignment, the provision of single-sex spaces based on biological sex is both permitted and in many cases required. Allowing men to use women’s facilities is a violation of women’s dignity, creates a hostile environment, and exposes an employer to claims of discrimination and harassment from its female employees.

Employers should ensure that trans-identifying employees have access to suitable facilities.

What can you do?

Consider your position and whether you can push back. 

We have added responses to these excuses to our template emails. Read our guide to the law on workplace single-sex facilities and use our template emails to challenge employer policies.