Transgender people should not be asked what sex they are when using public toilets, according to long-awaited rules issued by the Equality and Human Rights Commission (EHRC). The delayed guidance states that it is ‘unlikely to be either practical or appropriate’ to challenge individuals about which restroom they should use in places such as supermarkets or cinemas.
Key Provisions of the Guidance
The new Code of Practice, updated following a landmark Supreme Court ruling on single-sex spaces, advises that signs and websites should inform the public when a service is single-sex. Service providers may ask if someone is eligible to use a female-only area only if there is ‘clear evidence’ that men are attempting to access it. However, the EHRC warns that it is ‘not always possible to be sure of a person’s sex from their appearance’ and that official documents like passports or driving licences do not provide ‘reliable evidence’.
The guidance explicitly states: ‘It is unlikely to be either practical or appropriate to approach any particular individual to make enquiries about their sex in relation to facilities, such as toilets, which are incidental to the primary service.’
Reactions from Campaigners
Maya Forstater, chief executive of women’s rights charity Sex Matters, welcomed the publication of the document but criticised its clarity. She said: ‘The guidance could be clearer that service providers are entitled to ask people to state their sex, and to require an honest answer. It's absurd to say that it is “unlikely to be either practical or appropriate” to ask an individual what sex they are in relation to facilities such as toilets: on the contrary, if a man walks into a women's space it will be not just appropriate to challenge him, but essential. Otherwise women’s rights to single-sex spaces cannot be enforced.’
Government Response
Equalities Minister Bridget Phillipson, who published the 342-page document after facing accusations of delays, said: ‘The Equality Act enshrines our rights in law so that people can live free from discrimination and harassment. Our focus has always been making sure organisations have clear, accessible guidance on how to implement the law.’ A source close to her added: ‘Bridget believes firmly in the importance of protecting single sex spaces for women, but this can be done in a way that ensures dignity for trans people too: it is not an either or. She will take no lectures on the rights of women just as she will never punch down on any minority.’
Background
The EHRC Code of Practice had to be updated after the Supreme Court ruled in April 2024 that the definition of a woman under the Equality Act is based on biology rather than gender identity. The watchdog published interim guidance soon after, clarifying that biological males cannot be allowed into women-only toilets, changing rooms, or sports teams. The final guidance was submitted to the government in early September, but publication was delayed, with critics accusing Ms Phillipson of sitting on it. Downing Street denied any attempt to bury bad news, stating the delay was to ‘get it right’.
