The truth about toilets
Following the Supreme Court ruling on the meaning of the protected characteristic of sex, everyone wants to talk about toilets.
The Equality Act, and this judgment, are about much more than toilets. But toilets are important.
So here are some answers to the most common questions. They are mainly common sense.
Does the Equality Act say that male and female toilets always have to be provided?
The Equality Act does not say what particular services have to be provided on a separate-sex basis.
As everyone knows, some locations have only unisex toilets (such as on a train). Others have separate-sex facilities. Some have both.
Does that mean that single-sex toilets do not have to be provided?
No. There are several laws specifically about providing toilet facilities, in particular in workplaces and schools. And not providing adequate toilets for both men and women would be sex discrimination.
The specific laws about toilets make clear that a fully-enclosed room for a single user as you have at home or separate male and female washrooms containing stalls or urinals (or both) are both considered adequate.
But traditional cubicles in a room that is open to both sexes are not adequate.
What is provided in practice will depend on the size of the building, how busy it is and so on. In some buildings, such as small cafes or offices, and on trains, there may only be space for one toilet which is for everyone. In places like larger offices, pubs, concert venues and football stadiums, it is much cleaner, safer and faster if there are separate facilities.
The Workplace (Health, Safety and Welfare) Regulations (1992) apply to most employers in England.
Regulation 20 requires that:
“Suitable and sufficient sanitary conveniences shall be provided at readily accessible places”
and that
“Separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside.”
Regulation 21 requires washing facilities to be separate in a corresponding way except when the washing is merely of hands, forearms and face.
The Approved Code of Practice (ACOP) on workplace health and safety sets out further guidance. It says that “adequate” means that you have to provide enough toilets and washbasins for those expected to use them and:
“Where possible, separate facilities for men and women, failing that, rooms with lockable doors.”
The Health and Safety at Work Act 1974 is the primary piece of legislation covering occupational health and safety in Great Britain. Employers must provide a working environment that is:
“So far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.”
The Building Act 1984 applies to owners and occupiers of buildings in England and Wales.
Section 65 on provision of sanitary conveniences in workplace says:
(1) A building that is used as a workplace shall be provided with —
(a) sufficient and satisfactory accommodation in the way of sanitary conveniences, regard being had to the number of persons employed in, or in attendance at, the building, and
(b) where persons of both sexes are employed or in attendance, sufficient and satisfactory separate accommodation for persons of each sex, unless the local authority are satisfied that in the circumstances of the particular case the provision of such separate accommodation is unnecessary.
Most building work being carried out in England must comply with the Building Regulations 2010. Since October 2024, Schedule 1 has included requirement T1 which says:
(1) Toilet accommodation in buildings other than dwellings—
(a) must consist of—
(i) reasonable provision for male and female single-sex toilets, or
(ii) where space precludes provision of single-sex toilets, universal toilets, and(b) may consist of universal toilets in addition to single-sex toilets.
(2) In this requirement—
“single-sex toilet” means toilet facilities which—
(a) are intended for the exclusive use of persons of the same sex, and
(b) provide washbasins and hand-drying facilities in—
(i) either the toilet room or cubicle, or
(ii) a separate area intended for use only by persons of that sex.“universal toilet” means toilet facilities which—
(a) are provided in a fully enclosed room which contains a water-closet and washbasin and hand-drying facilities, and
(b) is intended for individual use by persons of either sex.
Approved document T provides more detailed guidance on the design and layout of the different types of toilet and requires that toilets have clear and appropriate signage.
What does the Equality Act say about toilets?
Schedule 3 part 7 of the Equality Act allows service providers to offer single-sex and separate-sex services. This includes toilets. At Schedule 3 paragraph 26, it provides several “gateway conditions” that provide the legal basis to allow service providers an exception to sex-discrimination rules – this is what makes it lawful for service providers to provide single-sex services. These include:
“Where the service is provided for, or is likely to be used by, two or more persons at the same time, and the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”
and
“Where the service is also provided jointly for persons of both sexes, and the service would be insufficiently effective were it only to be provided jointly.”
This recognises that some services might be provided separately, jointly (to both sexes) or with a mixture of options.
There is no similar exception needed for workplace toilets, since it is a statutory requirement to provide adequate male and female toilets at work.
What does the Supreme Court ruling mean for toilets?
The Supreme Court ruling makes it clear that the Equality Act 2010 (and the Sex Discrimination Act 1975 before it) did not set out to make it legally difficult to provide separate-sex toilets. Nor did it give some people the right to use opposite-sex toilets:
“The legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women.” (paragraph 52)
The Supreme Court says that the gateway conditions by which the Equality Act provides for separate-sex services “cannot be coherently applied if sex does not carry its biological meaning”.
For example, the condition that a person of one sex might reasonably object to the presence of a person of the opposite sex will NOT be capable of being fulfilled in practice if “woman” is interpreted to include “trans woman”, since trans women are biologically male (and are likely to be perceived as so) and many women will feel as uncomfortable sharing a space with them as they would with any other man.
While the Supreme Court did not expressly address the question of the Workplace Health and Safety Regulations, the same rationale would clearly apply, and therefore where the regulations refer to men and women, this is a reference to biological sex.
Once you put a sign on the door that the toilet is male or female, then a person of that sex could “reasonably object to the presence of a person of the opposite sex”.
Signs that say “male” or “female”, “men” or “women”, or use symbols meaning men and women communicate that this is a single-sex service, lawful under the Equality Act, and thus provided on the basis of biological sex. Individuals of the opposite sex should respect those rules, which lawfully exclude them.
These are common-sense rules. It is well understood, for example, that people will not reasonably object to an infant or young child in an opposite-sex washroom or changing room with their parent. In some places there may be explicit rules about this (such as ”boys under 8 are allowed into the ladies’ changing rooms”), but mainly people are trusted to be sensible, and can be challenged if they are not.
Employers and service providers that do not provide single-sex toilets or that provide them in an ambiguous way (suggesting they can be used based on gender identity) are exposing themselves to the risk of legal action.
Do service providers have to police their services?
Most toilets are not directly policed (although some, such as in pubs, clubs and entertainment venues, are in places where there are security staff, and others, such as in the workplace, schools and gyms, are in settings where rules can readily be enforced). In general they are self-policed by people following what the signs say about whether a space is for men, women or people of both sexes.
These rules need to be able to be clearly understood by staff and customers, and ought to be able to be communicated simply, both verbally and in instructions, and using the commonly understood symbols.
For example, if someone asks “Are there separate men’s and women’s toilets on the third floor?” the answer might be “Yes” or “No, the toilets there are unisex.” The answer “Yes, there are men’s and women’s toilets (but anyone can choose which ones to use),” is no answer at all.
Signs and policies that promote ambiguity will mean that the service provider cannot show that they are meeting the gateway conditions for providing a lawful single-sex service. They are exposing themself to legal risk and would not be able to rely on the exceptions in the act if they were sued for sex discrimination. They are also creating a hostile, humiliating and degrading environment, which is likely to be unlawful sex-based harassment (for example, see the Sandie Peggie case).
Many settings are regulated, for example by Ofsted (schools), HSE (workplaces), CQC (healthcare) and local authorities (some workplaces and entertainment and hospitality venues). Regulators should pay attention to both the adequacy of facilities and the policies by which they are managed. Telling one group of people that you are providing them with single-sex facilities and another group to use whichever facilities they prefer (or that the facilities are provided based on “gender”) is not a safe or responsible practice.
What toilets should transgender people use?
If someone doesn’t feel comfortable using separate-sex toilets for their own sex, there is often a single-user unisex option. This is particularly true in large buildings, transport hubs, campuses and so on.
It is part of the longstanding building code (such as Approved Document G and Approved Document M in England) that suitable sanitary accommodation should be available to everybody, including sanitary accommodation designed for wheelchair users, ambulant disabled people, people of either sex with babies and small children, and people encumbered by luggage. This usually provides enough flexibility that individuals are not faced with the dilemma of there being only two options, neither of which suits them.
What the Supreme Court’s judgment makes clear is that transgender people should not expect or consider it a right to use opposite-sex facilities. Service providers, employers, schools and colleges should not tell them that they can.
As a result of this judgment, doctors, therapists, charities and advocacy organisations should also not encourage people who identify as transgender to go into opposite-sex facilities.
Schools, employers and so on should not tell other people that they have to be comfortable sharing single-sex facilities with members of the opposite sex.
Does this mean that “transmen” should use the ladies’?
This is a longstanding rhetorical argument known as the “transman gotcha”. The argument goes that there are women who identify as men who have taken testosterone for an extended period, and who look and sound convincingly like men (for example with beards, male musculature and a deep voice).
Is the Supreme Court forcing a person who has taken extreme steps to look like a man to use the ladies’ toilets or saying that they have a right to?
The answer is no. Women who look convincingly like men and who go into the women’s toilets are likely to be just as alarming to women as actual men. They would have to explain themselves, providing personal information that they might not want to share (and that other people might not want to know).
Therefore it may not be practically possible for some trans-identifying women to use the ladies’ toilets.
The Supreme Court says that it is lawful to exclude them (at paragraph 221):
“Women living in the male gender could also be excluded [from a women’s service] under paragraph 28 without this amounting to gender reassignment discrimination. This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided.”
But this does not mean they have a right to use the men’s toilets, from which they are excluded by rule. Men also have a right to privacy and dignity.
This does create a difficulty for a person who has taken extreme steps to modify their body. It will become difficult for them to navigate sex-separated spaces. This is their dilemma. It should be explained to a person seeking to modify their body in this way that they will have to live with this practical difficulty, and that other people have rights. Doctors should stop offering the use of opposite-sex spaces as a test or a goal.
While individuals may say “You can pee next to me” to their friends, this ideological camaraderie cannot be used to manage public buildings or workplaces.
In most large public buildings where strangers mix, a unisex option is usually available and the practical dilemma does not arise.
This is not the same as saying that any person who identifies as trans must be excluded from same-sex spaces. For example in a school a girl might say “I identify as a boy”, or a boy might say “I identify as a girl”, or either might say “I am non-binary”. The child’s sex is known to the school and the school continues to have the same responsibility to safeguard that child. The child should not be allowed to use opposite-sex facilities, and should not be excluded from same-sex facilities. The school should keep that child safe and ensure they can continue to access education.
Could predatory men now use the women’s toilets and claim to be “trans men”?
This is an extremely silly argument. A man who uses the women’s toilets is breaking the rules. This is true whether he claims to be a man or a woman (or a woman who identifies as a man).
The idea that a man in a dress and a wig who wants to use women’s spaces and says he is a woman should be trusted, but a man in jeans and short hair who says he is a woman is definitely up to no good, shows just how far these arguments are from reality or concern for women.
Service providers are well within their rights to turn away someone whom they perceive to be a man from a women’s service, and women are within their rights to complain if they don’t.
What if there aren’t any toilets that a transgender person can comfortably use?
Where there are no unisex facilities and a trans-identifying person does not feel comfortable using facilities for their own sex, they have two practical options:
- Find somewhere else where there is a unisex option.
- Use the correct toilets for their sex.
The Supreme Court acknowledges that rules are sometimes in practice broken with impunity, but that this does not give someone the right to do so.
It concludes that, with or without a GRC, a transgender person does not have the right to use opposite-sex facilities.
Everyone has had the experience of being caught short in less than ideal conditions, and many have used a toilet they are not entitled to use occasionally. For example, many people will have used a toilet in a pub or cafe which is intended only for customers. They are not entitled to do so (and the proprietor could put up a sign, tell them not to, or install a lock on the door that requires a code to discourage people from doing this).
Similarly, many women will have gone into the men’s toilets when there is a queue for the ladies’ and no men around. Few men will have gone to the ladies’ in similar circumstances because it is more of a taboo, and for good reason: 98% of sex crimes are undertaken by men, with the most common being exposure, voyeurism and non-consensual touching. Men are stronger than women and their presence in a space where they are not supposed to be is alarming.
It cannot be assumed that a woman who does not speak up or complain about the presence of a man in a women’s space consents. She may be (quite rationally) frightened of a man who has shown that he does not respect rules.
Expecting men (including those who identify as transwomen) to stay out of women’s spaces is not an accusation that any individual man is intent on committing sexual assault, voyeurism or exposure, or getting pleasure from making women afraid. But without clear rules that everyone respects, these men cannot be kept out.
Decent men understand that they should respect boundaries put up for propriety, even where those boundaries are not well policed.
Both a “transman” using the men’s and a “transwoman” using the women’s are breaking a rule. But on top of that, the transwoman (a trans-identifying man) is doing something that could cause alarm and distress. This could rise to the level of a public-order offence or a criminal harassment charge if it is a course of conduct repeatedly directed at an individual, such as a work colleague.
The other options for a transgender person in a situation where there is no unisex option are to complain or sue for discrimination. This is unlikely to be practical in a one-off situation where a person finds themselves urgently needing to use the toilet, but in a workplace or leisure facility (such as the gym or cinema) a trans person could make a complaint or sue for indirect gender-reassignment discrimination if a lack of unisex facilities means they cannot go to the toilet comfortably at work or in practice use a service as a whole.
The employer or service provider should consider how services include members of the group that share the protected characteristic of gender reassignment, and either offer a unisex alternative (which already exists in most larger buildings) or argue that it is not a proportionate expectation (for example in a small historic building which has just two toilets and no room for a third).
Should service providers or employers just change all facilities to gender-neutral?
Some service providers and employers may be worried and think that the best thing to do to avoid an argument is to replace all their single-sex facilities with unisex.
This is a bad idea.
Separate-sex facilities are generally preferred, and are particularly important for women. They are easier to keep clean and to light and ventilate, and are more comfortable to use. They are more efficient, as the washbasins can be outside the cubicles, leading to faster throughput. They also allow for urinals, which are faster to use and keep the other toilets cleaner.
Replacing separate-sex facilities with fully enclosed “superloos” with the handbasins inside gives privacy, but will mean that fewer people can go to the toilet in the same time and space.
Women in particular feel less comfortable in unisex facilities. A row of unisex toilets in a busy venue (particularly a night-time venue) is an uncomfortable situation for many women, even if the hand basins are inside the toilet rooms. They may be forced to queue with men in a small enclosed space. Small spaces with floor-to-ceiling partitions are oppressive and can feel more unsafe than the traditional single-sex cubicles, because you don’t know who is outside the door, and you could get pushed into a cubicle. If you have a medical emergency you cannot easily call for help or communicate with people outside the door, nor can people outside see you if you have a seizure or lose consciousness.
Locks on public toilets are often faulty. This is a minor embarrassment in a single-sex washroom, but much more humiliating in a mixed-sex facility. Mixed-sex toilets and changing rooms also provide more opportunities for accidental-on-purpose exposure – a man may leave the door unlocked on purpose so that a woman accidentally opens it and sees him with his trousers down.
Ordinary, well-designed, single-sex facilities have features such as vestibules and corner turns at the entrance which put two layers of physical boundary between a woman on the toilet and a man who might be loitering nearby. This makes such facilities both feel safer and actually be safer, and deters opportunistic voyeurism and exposure.
Single-sex toilets with traditional cubicles are also places where parents (most often women) can supervise children more easily, because they, or a sibling, can monitor and reassure each other without having to be inside the cubicle together. Many women have had the experience of going to the toilet with the door ajar and a baby buggy wedged into it.
Any employers or service providers who are thinking of replacing single-sex washrooms with unisex “superloos” or unisex toilets with a shared washbasin area should consider the impact on women (as well as on religious, disabled and older users, and on parents with children). In England they are also subject to Building Code T, which makes the provision of separate-sex facilities the norm for new-builds and refurbishments.
Providing a single additional fully enclosed unisex toilet is usually a more appropriate way to avoid arguments.
What about just changing the signs?
Another suggestion has been to change the signs to show that some washroom facilities contain “cubicles” and others contain “cubicles and urinals” and let people choose.
This is a bad idea.
It likely to be unlawful sex discrimination and inadequate provision. A washroom with urinals is not suitable for women. This means that all of the facilities are available to men and only half the facilities are available to women. Furthermore, not everyone will understand the signage.
This has all the disadvantages of unisex facilities for women, while also excluding them from half the space.
Another bad idea is leaving the men’s toilets for men and changing the women’s into toilets “for everyone”. Again, this is likely to be unlawful sex discrimination.
Will women who don’t look feminine enough be thrown out of women’s toilets?
Another argument being made is that having female-only toilets means that butch lesbians and other women who are said to look masculine (such as tall women and women with polycystic ovary syndrome) will be challenged or thrown out.
This possibility is of course not a reason for men to be allowed into women’s toilets.
The existence of self-policed men’s and women’s toilets means that occasionally a woman or girl may be mistaken for a man or boy and might be challenged. This is a rare confusion that can usually be cleared up in a matter of seconds when she speaks.
Does the Equality Act require that “transgender women” be excluded from women’s toilets only on a case-by-case basis?
This misinterpretation of the Equality Act has been prevalent for the past 15 years, and the Supreme Court’s judgment has firmly and unambiguously said that it is wrong. A single-sex service can be provided where it is a “proportionate means to a legitimate aim”. Once this gateway condition is met, there is no need for the service provider to assess whether it is proportionate to apply the rule to each individual.
As the Supreme Court says, the terms of the Equality Act:
“would permit the exclusion of all males including males living in the female gender regardless of GRC status”. (paragraph 221)
“You can exclude them but you don’t have to”
This is misdirection.
If you have put up a sign that says “women”, “female”, “ladies” or similar, or used a symbol that means this, then this is a notice that excludes men.
A man who chooses to disregard the notice is not exercising a human right; he is breaking a rule that exists to protect women.
This could amount to harassment under the Equality Act and might amount to a public-order offence.