High Court upholds EHRC interim update following For Women Scotland

Background

In the case of R (Good Law Project Ltd) v Equality and Human Rights Commission, the High Court considered a challenge to guidance issued by the Equality and Human Rights Commission following the Supreme Court’s decision in For Women Scotland Ltd v Scottish Ministers.

In April 2025, the Supreme Court confirmed that references to “woman”, “man” and “sex” in the Equality Act 2010 refer to biological sex. Shortly afterwards, the EHRC published an interim update summarising the practical implications of that judgment, including for the provision of single-sex facilities by employers and service providers.

The update was criticised as oversimplified and was later amended to refer expressly to the Workplace (Health, Safety and Welfare) Regulations 1992. It was subsequently withdrawn, pending approval of a revised Services Code of Practice.

The Good Law Project and three individual claimants sought permission to apply for judicial review, arguing that the interim update was wrong in law, breached the EHRC’s statutory duties and was incompatible with Convention rights.

High Court decision

The High Court dismissed the claim.

The court confirmed that when issuing guidance, the EHRC must provide an accurate statement of the law and that the interim update met that standard.

The court considered the statements concerning single-sex facilities in workplaces and accepted that, when read as a whole, the guidance accurately reflected the requirements of the Workplace (Health, Safety and Welfare) Regulations 1992. The court stated that the objective of those regulations is to ensure men and women have separate sanitary facilities, and allowing biological males, including transgender women, to use facilities intended for biological women would breach those regulations.

The court rejected arguments that references to “men” and “women” in the health and safety regulations should be interpreted by reference to the Gender Recognition Act 2004, and such an approach would render the regulations unworkable and inconsistent with the reasoning in For Women Scotland.

The court determined that the interim update did not unlawfully suggest that trans people must use facilities corresponding to their biological sex. It recognised that facilities must comply with the Equality Act 2010, including protection against gender reassignment discrimination, and that justification will be fact-sensitive.

Finally, the court rejected arguments that the EHRC had breached its statutory duties under the Equality Act 2006 or that the guidance interfered unlawfully with rights under Article 8 of the European Convention on Human Rights. Even if interference arose, it would in principle be capable of justification.

Wider context

This judgment sits alongside a number of first instance employment tribunal decisions considering access to workplace facilities following For Women Scotland. Those cases have produced differing outcomes on their particular facts.

The High Court was not applying the law to a specific workplace policy but assessing whether the EHRC had correctly stated the law, which it concluded, it had.

A High Court decision is binding on employment tribunals in England and Wales (and persuasive in Scotland). The claimants have indicated an intention to appeal, and further appellate guidance may follow.

Learning points for employers

This decision will give some reassurance to employers in England and Wales who have reviewed or amended single-sex facilities policies in reliance on the EHRC’s interim update. The High Court has confirmed that, in broad terms, the legal analysis in that update was correct, even though it has since been withdrawn.

However, the judgment also underlines that compliance with health and safety requirements is only part of the picture. Employers must ensure that any facilities policy is considered holistically, taking into account obligations under the Equality Act 2010, including the need to avoid unlawful discrimination and harassment. Given the likelihood of further appeals and the anticipated publication of a revised Services Code, policies in this area should be kept under careful review and supported by specific legal advice where appropriate.

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For support or advice, please contact Elizabeth McTeigue in our Employment team.