EHRC Code of Practice for services: what does it say about toilets and changing rooms?

The Code only applies to services or facilities provided to the public, those exercising public functions and to associations. It is not relevant to workplace rules applying to staff and should not be used in that context.  

The Code is 342 pages long and provides organisations with information to help them to comply with the provisions in the Equality Act 2010 on services, public functions and associations. It refers to all protected characteristics and causes of action. Once approved, it will replace the existing Code of Practice which was published in 2011 and contains a number of significant errors. 

This blog focuses on one of the most contentious aspects of the Code: the provision of toilets and changing rooms for customers and service users. 

Background 

The Equality Act 2010 protects people from discrimination and harassment based on protected characteristics such as age, disability and sex. Last year the Supreme Court determined that sex means biological sex recorded at birth. People protected under the gender reassignment characteristic retain their biological sex even if they have a gender recognition certificate. 

What does the Code say about providing single or separate sex facilities? 

The starting point under the Equality Act is that you cannot discriminate against someone on the basis of a protected characteristic. 

However, Schedule 3, Part 7 contains a number of exceptions which allow organisations to provide services: 

These exceptions aren't automatic - and you can only apply them if you meet the legal tests set out in the Act. 

What is a proportionate means of achieving a legitimate aim in this context?

Unsurprisingly, the Code states that ensuring the safety of women or the privacy and dignity of women or men is capable of being a legitimate aim. It then considers proportionality and makes it clear that if you are considering providing separate or single-sex services you must consider the needs of everyone who will use them and the impact on those you exclude. 

This requires you to undertake a balancing exercise. The Code specifically mentions the specific needs of people with different protected characteristics, such as older people, disabled people and those who observe particular religious practices. In this context it gives the example of Muslim people who may have a particular need for separate sex services to observe the requirements of their faith. It also acknowledges that providing separate or single sex service is likely to disadvantage trans people.

The Code gives examples of the sorts of things you need to consider if you offer a single-sex service for women. These include whether the women using the service are likely to get undressed, as would be the case in a changing room. It expressly states that where such factors are present, ‘"the benefits of offering a separate or single-sex service will be likely to outweigh other considerations in the balancing exercise".

Toilets and changing rooms

The word “services” is broad enough to include facilities such as toilets and changing rooms.

The Code recognises toilets are necessary for everyone. It suggests that, where possible, providers provide:

The Code confirms that excluding a trans person from toilets that do not align to their biological sex is not unlawful discrimination because of gender reassignment. And in terms of sex discrimination it explains that the correct comparator is a person of the opposite sex. This means that a trans woman (a biological male) excluded from the ladies toilets can't successfully argue that they were treated less favourably than a woman because the correct comparator is a man who would also be excluded.

Do you need a policy?

It should be accessible to service users - both on your website and via hard copies. Make sure the signs on toilet doors and changing rooms are clear and unambiguous.

Do you have to ‘police’ your facilities?

We live in a rules based society and you should expect people using your facilities or services to follow your rules. 

The Code recognises that there may be some circumstances when you need to ask for information about a person's sex - such as where the service you are providing is only available to women.

It addresses what you should do if there is “clear evidence” of someone using a service/facility that doesn't align with their biological sex. It says you can ask proportionate questions in a way that respects the individual's privacy and avoids distress. You will need to do this away from the public gaze and ensure that your staff know how to approach this sensitively.  

If the individual confirms they are not using the correct facility or service for their sex, you can ask them to leave and exclude them from the service. But if you doubt the truthfulness of their answer you should “consider what action is proportionate in the circumstances”. The Code recognises that asking for proof in the form of official documents may not help you as these can be changed with or without a GRC and suggests that you consider the following before reaching a decision about whether to admit them:

• how strong are your grounds of concern
• the nature of the service you are providing; and
• the nature and potential severity of the risks and potential harms to, respectively, the individual in question and other service users.

In terms of toilets the Code says that “it is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex”.

What factors do you need to consider if you are recording someone's sex? 

You need to ensure that you comply with data protection laws if you are recording the sex of an individual. However, the Code is wrong to suggest that this information is special category data. It isn't and you should not treat it as such.

Key takeaways:

1. The Code does not apply to the relationship you have with your staff. The EHRC has a separate code of practice on employment which was published in 2011 which remains in force (it will need to be updated to reflect the Supreme Court's decision about the meaning of sex). Toilets and changing rooms are regulated under the Workplace (Health, Safety and Welfare) Regulations 1992. The High Court has recently confirmed that these Regulations require workplace toilets to be separated by biological sex unless they are contained in individual rooms with floor to ceiling lockable doors.
2. If you meet the legal tests set out in the Equality Act and provide male and female toilets and/or changing rooms for members of the public to use, access should be on the basis of biological sex. Use clear signs and make your policy accessible to users.
3. You do not have to convert existing male and female toilets and changing rooms to gender neutral facilities if you have a lawful reason to provide separate sex facilities, and in some cases, providing only gender-neutral opions may discriminate against women. However, you should provide facilities for trans people who do not wish to use those aligned to their natal sex - particularly in the case of toilets. In some circumstances you may be able to direct people to use accessible toilets.
4. You do not have to police who uses your facilities but you may be asked to step in and deal with any complaints. Make sure your staff know how to deal with these situations and have received appropriate training.
5. You do not have to follow the Code but if it is relevant a tribunal or court must take what it says into consideration when deciding if you have discriminated against a user.  

Instruct an expert

We have a specialist group of employment lawyers who can advise you about your obligations under the Equality Act and have experience helping organisations who wish to provide single and separate sex facilities to comply with the law. Please contact Jenny Arrowsmith for more information.

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