No bathroom ban: High Court rules service providers do not have to exclude trans women from women’s toilets

In a challenge by Good Law Project to the Equality and Human Rights Commission’s (EHRC) 'interim guidance', the High Court has ruled that service providers may lawfully allow trans people to use facilities in line with their lived gender – with significant implications for the draft Code of Practice.

Responding to the judgment today, a Trans+ Solidarity Alliance spokesperson said: “The legal situation for trans people, employers and service providers is now completely incoherent.

"What bathroom a trans person can use in a pub may now depend whether they are there as an employee or for a drink. We are pleased the court has confirmed that the Equality Act does not function as a bathroom ban, but outdated workplace regulations have failed to keep up with modern times and last year’s Supreme Court judgment has made them entirely unworkable. 

“This risks outing trans people at work, who may have been using gendered facilities without issue for years - and it is unclear how trans people without access to gender neutral facilities will be able to do their jobs.  This is a worker's rights crisis for the trans community, and one which will cause issues for employers across the country. 

“The High Court has clarified that trans people should not be forced to use facilities in line with their birth sex, but it is hard to see how treating us as a 'third sex' at work aligns with the privacy protections in the Gender Recognition Act or the Human Rights Act. We must be allowed to transition and move on with our lives with privacy, not be outed every day at work.”

Since the decision of the Supreme Court in April last year, many politicians and organisations have claimed that the law now requires trans people to be excluded from gendered spaces and services. They have claimed that if, for example, a trans woman is allowed to use the women’s toilet, then cis men must be allowed also. 

This is also understood to be the interpretation of the law that has been adopted by the EHRC in its draft Code of Practice – now awaiting approval or rejection by the Minister for Women and Equalities, Bridget Phillipson MP.

This is a very distressing judgment for me as a lawyer, as it will be for the trans community.

The High Court has now said that this interpretation of the law is wrong. Service providers may lawfully allow trans women to use women’s facilities without being forced to open them to cis men. And such facilities may simply be labelled for ‘men’ and ‘women’. The Court has also made clear that it will likely be discriminatory to force trans people to use facilities based on their sex recorded at birth. In short, the law does not require a bathroom ban.

This means that the draft Code of Practice is wrong about the law, and will need to be rejected by the Minister for Women and Equalities.

Good Law Project’s legal submissions were, save for the above, rejected by the High Court. It will appeal to the Court of Appeal or - if permission is refused - to the European Court of Human Rights.

Jo Maugham, director and founder of Good Law Project, said: “This is a very distressing judgment for me as a lawyer, as it will be for the trans community. Aspects of it - that wave away as ‘workplace gossip’ evidence of what it means to be outed in an increasingly transphobic and violent society - are deeply troubling. They remind me of how the pain of women was once dismissed as hysteria. I urge the judiciary to listen harder to what trans people say about what their lives have become.”

Jess O’Thomson, trans rights lead at Good Law Project, said: “We are deeply concerned about many aspects of the High Court’s decision. But the judgment also makes it absolutely clear – the law has been dangerously misrepresented. Contrary to what has been widely claimed by politicians and the media, it can be entirely lawful for service providers to let trans women use the women’s toilets. The Minister must now reject the draft Code – which is wrong about the law.”