NHS staff access to single-sex spaces

Approximate read time: 15 minutes

On 1 May 2025, the House of Lords is scheduled to discuss the following question for short debate:

Lord Arbuthnot of Edrom (Conservative) to ask His Majesty’s Government what steps they are taking to ensure all NHS staff have sufficient access to single-sex spaces.

1. Single-sex spaces

1.1 Provisions of the Equality Act 2010

The provisions of the Equality Act 2010 (EA 2010) are important for understanding legal issues relating to the concept of single-sex spaces. The EA 2010 provides protection against unlawful discrimination based on certain ‘protected characteristics’. It applies across various settings including the workplace, education, the provision of services and public functions and membership of clubs and associations.^[1]

Sex and gender reassignment are two of the protected characteristics in the EA 2010. The act makes it unlawful to discriminate against women and men on the basis of the protected characteristic of sex.^[2] A “man” is defined as “a male of any age” and a “woman” is defined as “a female of any age”.^[3]

The protected characteristic of gender reassignment applies to a person who “is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. ^[4] This definition does not depend on the person having a gender recognition certificate.^[5]

Although it is generally unlawful under the EA 2010 to discriminate based on the protected characteristics of sex and gender reassignment, the act does create some exemptions. Service providers can provide separate services for both sexes or a single-sex service in certain circumstances. It is not unlawful sex discrimination for those providing services to the public(or a section of the public) to provide:

• Separate services for both sexes if a joint service for both sexes would be less effective and providing separate services for both sexes is a proportionate means of achieving a legitimate aim.^[6]
• Single-sex services if it is a proportionate means of achieving a legitimate aim and any of the following conditions is met:^[7]
  • only persons of that sex have need of that service
  • the service is also provided jointly for persons of both sexes and it would be insufficiently effective were it only to be provided jointly
  • a joint service for persons of both sexes would be less effective and the extent to which the service is provided by persons of each sex makes it not reasonably practicable to provide separate services
  • the service is provided at a hospital or another establishment for persons requiring special care, supervision or attention
  • 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
  • there is likely to be physical contact between a person (A) to whom the service is provided and another person (B) and B might reasonably object if A were not of the same sex as B

A further exception provides that anything done by a service provider in relation to providing separate services to the public for each sex or single-sex services is not unlawful gender reassignment discrimination “if the conduct in question is a proportionate means of achieving a legitimate aim”.^[8]

1.2 Workplace facilities

The Workplace (Health, Safety and Welfare) Regulations 1992 set out requirements about the provision of single-sex toilets, washing facilities and changing facilities in workplaces.

The regulations state that “suitable and sufficient” sanitary conveniences must be provided at readily accessible places.^[9] Sanitary conveniences are not suitable unless (among other things) “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”. Suitable and sufficient washing facilities, including showers if required by the nature of the work or for health reasons, must also be provided at readily accessible places.^[10] Washing facilities are not suitable unless (among other things) “separate facilities are provided for men and women, except where and so far as they are provided in a room the door of which is capable of being secured from inside and the facilities in each such room are intended to be used by only one person at a time”. An approved code of practice and guidance issued by the Health and Safety Executive (HSE) contains further information about the number of toilets and washbasins that should be provided in a workplace where both men and women are working, depending on the number of men and women.^[11]

The regulations state that suitable and sufficient facilities shall be provided for any person at work in the workplace to change clothing if they have to wear special clothing for the purpose of work and where they cannot, for reasons of health or propriety be expected to change in another room.^[12] The HSE approved code of practice interprets this to apply to workers who change into special work clothing and who remove more than outer clothing.^[13] Changing facilities are not suitable unless (among other things) they “include separate facilities for, or separate use of facilities by, men and women for reasons of propriety”.^[14]

1.3 Single-sex spaces and the NHS

Much of the focus on single-sex spaces within the NHS has centred on the provision of services to patients. For instance, in 2010, the revised operating framework for the NHS set a policy that “mixed-sex accommodation needs to be eliminated, except where it is clearly in the overall best interests of the patient”.^[15] Since 2010, NHS organisations have collected data on ‘mixed-sex accommodation breaches’, defined as “the number of occurrences of unjustified mixing in relation to sleeping accommodation”.^[16] Reporting breaches has been mandatory since April 2011.^[17] Guidance sets out when mixing of the sexes may be justified. This could include where patients need highly specialised care, such as in critical care units, and where patients have actively chosen to share accommodation with others of the same age or with the same clinical condition, rather than sex.^[18]

NHS England guidance on same-sex accommodation for patients published in 2019 said that “trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use”.^[19] This did not depend on their having a gender recognition certificate or a legal name change. However, the guidance said this approach could be varied under special circumstances, “where, for instance, the treatment is sex-specific and necessitates a trans person being placed in an otherwise opposite gender ward”.^[20]

There has been less public focus on the provision of single-sex facilities for NHS staff, although some cases relating to this have been brought to employment tribunal. A group of eight nurses from Darlington has filed claims at an employment tribunal against the NHS trust that employs them, challenging the trust’s policy of allowing a trans woman staff member to use a female changing room.^[21] This case is scheduled to be heard in October 2025. In a separate case in Scotland,^[22] a female nurse has brought claims of sexual harassment, belief discrimination and victimisation against both the health board that employs her and a trans woman doctor, involving the doctor’s use of a female changing room as permitted by the health board.^[23] In February 2025, this case was adjourned until July 2025.^[24]

2. Supreme Court judgment on interpretation of the Equality Act 2010

In a recent appeal, the Supreme Court considered how the terms “man”, “woman” and “sex” should be interpreted in the EA 2010.^[25] This case has implications for the provision of single-sex services.

At issue was whether the term “woman” in the EA 2010 should be interpreted to include a trans woman with a gender recognition certificate (GRC), or whether the term “woman” in the EA 2010 refers to a person who is a “biological woman, ie who was at birth of the female sex” and whether the term “sex” in the EA 2010 refers to “the sex of a person at birth”.^[26] The Supreme Court used the term “trans woman” to mean a person who is a biological man but who has the protected characteristic of gender reassignment.^[27] Similarly, it described a person who is a biological woman but who has the protected characteristic of gender reassignment as a “trans man”.

The Supreme Court said its role was not “to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010”.^[28] Rather, its task was to see if the words used in the EA 2010 could “bear a coherent and predictable meaning within the EA 2010 consistently with the Gender Recognition Act 2004 (GRA 2004)”. The GRA 2004 established that an adult can receive a GRC if they provide evidence that they have or have had gender dysphoria, have lived as their acquired gender for two years and intend to continue to do so until death.^[29] Section 9(1) of the GRA 2004 establishes that trans people are to be considered their “acquired” gender (the gender reflected on their GRC) “for all purposes”. Section 9(3) allows this to be disapplied by a provision in the GRA 2004 or “any other enactment or subordinate legislation”.

The Supreme Court held that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex.^[30] It said that any other interpretation would make provisions of the EA 2010 “incoherent and unworkable”.^[31] It concluded that the “proper functioning” of the EA 2010’s provisions on separate spaces and single-sex services (including changing rooms) “requires a biological interpretation of ‘sex’”.^[32]

The judgment also stated that “a biological sex interpretation would not have the effect of disadvantaging or removing important protection under the EA 2010 from trans people (whether with or without a GRC)”.^[33] It said that in the light of case law interpreting the relevant provisions of the EA 2010, trans people would be able to invoke the provisions on direct discrimination and harassment and indirect discrimination.^[34] On this basis, when he handed down the judgment, Lord Hodge, deputy president of the court, advised it should not be read “as a triumph of one or more groups in our society at the expense of another”.^[35]

3. Policy response to the Supreme Court judgment

3.1 Ministerial statement

Bridget Phillipson, the minister for women and equalities, made a statement about the judgment in the House of Commons on 22 April 2025. She said the government would “continue, as before, working to protect single-sex spaces based on biological sex—now with the added clarity of this ruling”.^[36] She said the government would “support the rights of all people with protected characteristics, now and always”.

Ms Phillipson said the impact of the Supreme Court ruling was “that a person will be considered as their biological sex for the purposes of the Equality Act, regardless of whether or not they have a gender recognition certificate”. She said there was “a need to ensure that this ruling is clear across a range of settings”. She said the Equality and Human Rights Commission (EHRC) was working to issue an updated statutory code of practice to reflect the judgment, which she expected it to do “as rapidly as possible, recognising that this is a thorough and detailed piece of work”.^[37] She also said NHS England would soon publish guidance on how trans patients should be accommodated in clinical settings.^[38] In answer to a question about whether trans women would be cared for on male wards, Ms Phillipson replied that “the basis for NHS provision, and the basis for single-sex services of all kinds, will be on the basis of biological sex”.^[39]

Ms Phillipson did not say anything specifically about the provision of single-sex spaces for NHS staff. At the time of writing, the government had not yet answered a parliamentary question about the Department for Health and Social Care’s plans to ensure the recognition of biological sex in the provision of staff facilities.^[40]

3.2 Equality and Human Rights Commission code of practice and guidance

Responding on the day of the Supreme Court judgment, Baroness Falkner of Margravine (Crossbench), chair of the EHRC, said the ruling had “significant implications for the interpretation of Britain’s equality laws”.^[41] She said the EHRC would take the judgment into account in its ongoing work as regulator of the EA 2010, including the development of its revised code of practice. The Equality Act 2006 gives the EHRC powers to issue and revise statutory codes of practice in connection with any matter addressed by the EA 2010.^[42] A statutory code of practice is admissible in criminal and civil proceedings and must be taken into account by a court or tribunal if the court or tribunal considers the code to be relevant.^[43] However, a failure to comply with a provision of a statutory code of practice does not itself give rise to criminal or civil proceedings. The EHRC was already working on a revision to its ‘Services, public functions and associations: Code of practice’, originally issued in January 2011, prior to the Supreme Court judgment.^[44]

Baroness Falkner said the EHRC would also review as a matter of urgency its other (non-statutory) guidance impacted by the judgment, such as its single-sex services guidance. The EHRC’s guidance ‘Separate and single-sex service providers: A guide on the Equality Act sex and gender reassignment provisions’, was published in April 2022.

On 25 April 2025, the EHRC published an interim update on the practical implications of the judgment.^[45] It set out the implications for workplaces and services open to the public (including hospitals) as follows (emphasis in original):

In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the act [the EA 2010]. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

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 that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological women) not to be permitted to use the women’s facilities
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men^[46]

For the revised statutory code of practice, there are processes set out in the Equality Act 2006 that must be followed. The EHRC must publish proposals, and consult such persons as it thinks appropriate.^[47] It must also submit a draft to the secretary of state, who must either approve it and notify the EHRC before laying it before Parliament, or otherwise give the EHRC reasons why they do not approve the draft. Once a code has been laid before Parliament, if neither House passes a resolution disapproving it within 40 days, the EHRC may issue the draft code, and the code comes into force in accordance with provision made by the secretary of state by order.

The EHRC is aiming to provide an updated code of practice to the government by the end of June 2025 for ministerial approval.^[48] Subject to ministerial approval, it expects this code of practice to be laid before Parliament before the summer recess.^[49] The EHRC ran a consultation between October 2024 and January 2025 on updating its code of practice for services, public functions and associations.^[50] It is currently reviewing sections that need updating in light of the Supreme Court judgment.^[51] It intends to run a public consultation for two weeks from mid-May 2025.

The EHRC also issued an ‘Employment statutory code of practice’ in 2011. It is not clear if this will also be updated following the Supreme Court judgment.

4. Read more

• House of Commons Library, ‘Gender recognition and the Equality Act 2010’, 26 November 2024
• Statement by Minister for Women and Equalities Bridget Phillipson on ‘‘For Women Scotland’ Supreme Court ruling’, HC Hansard, 22 April 2025, cols 945–69
• Statement by Minister of State Baroness Smith of Malvern on ‘‘For Women Scotland’ Supreme Court ruling’, HL Hansard, 24 April 2025, cols 762–74

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