Andrew Ducker (@andrewducker.bsky.social)

Case update: Good Law Project Limited & Ors v EHRC On 13 February 2026, the High Court rejected a judicial review challenge1 brought by Good Law Project and three individual claimants to the “interim update” that the Equality and Human Rights Commission (“EHRC”) published following the Supreme Court’s decision in For Women Scotland v Scottish Ministers [2025] 2 WLR 879. Background In For Women Scotland, the Supreme Court held that, for the purposes of the Equality Act 2010 (“EqA”), “man”, “woman” and “sex” have their “biological” meaning, such that the exceptions in the EqA which allow (in certain circumstances) the provision of single-sex spaces only apply if they are “biologically” single-sex. Previously, it had been fairly broadly understood – including by the EHRC – that trans people should, in relation to single-sex spaces, be treated in accordance with “the gender role in which they present”.2 After For Women Scotland, the EHRC sought to correct that interpretation by publishing an “interim update” which said, amongst other things, that: “in workplaces and services that are open to the public…trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean they are no longer single-sex facilities and must be open to all users of the opposite sex”. It went on to say that, where single-sex facilities are provided, trans people should not be left with no facilities, and where possible mixed-sex facilities should be provided in addition. The claimants argued that either the EHRC’s interim update misrepresented the EqA, or the EqA itself was incompatible with the European Convention on Human Rights. Summary of the High Court’s decision The Court rejected the claims, and held that the interim update had accurately represented the law (and that the EqA was compatible with Convention rights). As explained in more detail below, the Court commented that, whilst employers and service providers must comply with applicable law, neither the Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”) nor the EqA (read in light of For Women Scotland) impose a blanket rule in relation to access to facilities such as toilets. Each situation will turn on its own facts, and organisations should be guided by “common sense and benevolence”. In both cases, there is an expectation that biologically single-sex toilets (or individual lockable rooms available for use by all) will be provided – in workplaces, because the 1992 Regulations require some form of single-sex provision, and in other contexts because failing to make single-sex provision could give rise an indirect sex discrimination claim. But trans people should not be left with no facilities or required to use toilets corresponding to their biological sex. There is an expectation that employers / providers will go beyond biologically single-sex facilities and make additional provision – otherwise they risk discriminating against trans people. What is proportionate and reasonable in each case will depend on the context. Procedural points The Court noted that the EHRC’s interim update had been acted upon almost immediately by some service providers and employers, and had continued to be influential despite being taken down from the EHRC’s website. The claim was accordingly not academic, as the EHRC had argued. The individual claimants met the “sufficient interest” test and so had standing to pursue the challenge. Good Law Project, despite having a “sincere interest” in the subject matter, did not have standing, because it was not “personally or directly affected by the decision challenged in this case”. That echoes the Court’s comments in the Sex Matters v City of London Corporation permission decision on 29 January 2026, which found that the claimant charity did not have standing to pursue the judicial review application on behalf of individuals who claimed to be directly impacted. The Court accepted that the EHRC has a duty to summarise the law accurately (even if not comprehensively). The case accordingly turned on how the EHRC had summarised the law, and whether it had done so correctly. The Court held that the EHRC had accurately summarised the law – at least to the standard required – and confirmed that the law is broadly as follows. Workplaces Workplaces must provide “suitable and sufficient” toilet facilities for employees. That means providing toilets in separate rooms for men and women, and/or toilets in the form of an individual (single occupancy) lockable room.3 “Man” and “woman” in the 1992 Regulations, as in the EqA, have their biological meaning; a trans woman is not, for these purposes, a woman even if she has a Gender Recognition Certificate. (This is contrary to, and supersedes, the Employment Tribunal’s findings in Kelly v Leonardo.) If employers purport to meet the requirements of the 1992 Regulations by having separate single-sex toilets for men and women, they cannot nonetheless have a policy of allowing trans people to use the toilets corresponding their gender identity, because then the toilets would no longer be single-sex. However, employers must also make sure that their provision of toilet facilities is not directly or indirectly discriminatory on the ground of gender reassignment (as defined in the EqA), and requiring trans people to use toilets corresponding to their biological sex might constitute such discrimination. The 1992 Regulations do not prohibit the provision of additional toilet facilities which go beyond the minimum requirements of “suitable and sufficient”. So, as long as employers have provided toilets that comply with the 1992 Regulations – through biologically single sex toilets for men and women, or an appropriate number of individual lockable room(s) – they are free to offer additional toilet facilities in any form they like. The requirements of the 1992 Regulations are a floor, not a ceiling. Indeed, employers will in many cases have to go beyond the “floor” set out in the 1992 Regulations to avoid discriminating against trans people (as outlined above). Those additional toilets could take the form of individual lockable room(s), unisex cubicle toilets open to all, or trans-inclusive toilets for men (including trans men) and women (including trans women). Requiring trans people to use unisex or individual lockable toilets (instead of single-sex facilities) is not likely to be discriminatory. Employers can trust their employees to comply with the rules, and are not required to police or monitor the use of the toilets (though they would be expected to act on any complaints). The above also applies in relation to washing facilities and changing rooms. Service providers There is no requirement for service providers to provide toilets on a single-sex basis, but they can choose to do so if it is a proportionate means of achieving a legitimate aim. Choosing not to provide any single-sex toilets might constitute indirect sex discrimination against women. Single-sex (under the EqA) means biologically single-sex. If a service provider’s policy is to allow trans women to use the women’s toilets, those toilets are not single-sex, and: the consequence of that is that a (biological) woman might be able to bring a claim for indirect sex discrimination against the service provider; but the consequence is not that all biological men would also be entitled to use the women’s toilet. A (cis) man could bring a direct discrimination claim on that basis, but the question would be whether requiring him to use the men’s toilets rather than the women’s constituted “less favourable treatment”. There is a strong argument that – provided the toilets were materially similar – it would constitute “different but not less favourable treatment”. On a similar basis, a trans-inclusive women’s toilet could potentially justify excluding (cis) men on the basis that the limited provision was a “positive action” (benefitting cis and trans women) under s158 of the EqA; and the trans-inclusive toilets could still properly be labelled as “women’s” and “men’s” toilets. This finding was contrary to the EHRC’s interim update, which said that allowing trans women to use a women’s toilet meant that (cis) men would also be allowed to use it – but the Court held that the EHRC’s analysis was not “necessarily” wrong in all cases, and so its approach did not give rise to legal error. Allowing women to bring in their male children, or allowing access to male cleaners, would not compromise a facility’s single-sex status. If a service provider only offers toilets in the form of individual lockable rooms, it would be making adequate provision, and would not be discriminating against anyone. Providing only (biologically) single-sex facilities, and making no additional provision (in the form of trans-inclusive men’s and women’s toilets, mixed facilities, or individual lockable rooms) might well constitute discrimination against trans people. The EqA provides that the provision of single-sex toilets by a service provider will not constitute discrimination on the grounds of gender reassignment as long as it is a “proportionate means of achieving a legitimate aim”,4 and the Court held that the proportionality requirement “tends against a situation” where single-sex provision requires trans people to use inappropriate toilets, or no toilets at all. As above, requiring trans people to use unisex or individual lockable toilets (instead of single-sex facilities) is not likely to be discriminatory. A provider who only had space for two cubicle-style toilets – with no ability to introduce additional facilities – would accordingly risk discriminating against biological women if they operated both toilets on a trans-inclusive basis. But they would risk discriminating against trans people if they operated both toilets on a biologically single-sex basis, and made no additional provision for trans people. In many cases difficult judgement calls are likely to be required. Status of the judgment As a High Court judgment, the decision is binding on the lower courts and tribunals, which is where most discrimination challenges will be heard. Unless and until it is successfully appealed or overruled by a higher court, it should be treated as the most authoritative statement of the law in this area. It takes precedence over the recent decisions issued by the Employment Tribunal, for example, which are not binding. The judgment is not intended as comprehensive guidance, and leaves gaps that the EHRC’s updated Services Code (which is still with the Minister for Women and Equalities to approve) will presumably seek to fill in due course. It is clear that cases will continue to turn on their own facts; employers and service providers will have to think carefully about what the law requires in their particular circumstances, and where the balance of risk lies. 1 good law project-EHRC-AC-2025-1953-judgment-13Feb26 2 Para 13.57 of the previous version of the EHRC’s Services Code 3 Regulation 20, Workplace (Health, Safety and Welfare) Regulations 1992 (“the 1992 Regulations”) 4 Schedule 3, para 28, EqA https://bateswells.co.uk/updates/case-update-good-law-project-limited-ors-v-ehrc/