On 16 April 2025, the Supreme Court handed down its judgment in For Women Scotland Ltd v The Scottish Ministers. It held that the terms “sex”, “woman” and “man” in the Equality Act 2010 refer to biological sex for the purposes of that Act.
The judgment was significant, but it did not remove the protected characteristic of gender reassignment or make discrimination, harassment and victimisation against trans people lawful. The Court expressly recognised that trans people, with or without a Gender Recognition Certificate, continue to have protection under the Equality Act.
The updated EHRC Code of Practice for Services, Public Functions and Associations comes into force on 5 August 2026. It provides an important statutory reference point for organisations, but it does not turn every difficult question into an automatic answer.
Employers and service providers must still decide how legal principles are translated into real environments, policies and human experiences.
That makes one question especially important: when an organisation acts to reduce its own uncertainty, who is being asked to carry the resulting risk?
When risk moves rather than disappears
An organisation facing a complaint, campaign or contested facilities question may feel pressure to act quickly. Restricting access, redirecting somebody to a different space or introducing a new rule can appear to provide certainty.
From inside the organisation, the decision may feel cautious and administratively straightforward. A risk has been identified, a policy position has been adopted and somebody has been told where they may or may not go.
The risk has not necessarily been resolved, however. It may simply have been moved.
The organisation reduces its immediate exposure by transferring the practical and emotional consequences onto the trans employee, patient, customer or member. That person must then manage the altered access, additional disclosure, increased visibility and possibility of confrontation created by the decision.
They may need to explain why they are using a different facility. They may have to travel further through a building, request a key, ask permission or use an accessible space that was not intended as a general alternative. They may become identifiable to colleagues or members of the public because they are the only person required to follow a different route.
In some cases, the person may decide not to use the service at all.
The organisation has not made the difficulty disappear. It has chosen who must live with it.
This does not mean that every restriction will be unlawful or that no decision may ever create disadvantage. Organisations sometimes have to balance competing needs and reach conclusions that do not give everybody their preferred outcome.
It does mean that the distribution of detriment must form part of the decision. A provider should not describe a measure as neutral merely because its institutional risk has been reduced.
Dignity must have an operational meaning
Public statements frequently say that trans people should continue to be treated with dignity and respect. Those words matter, but they are of limited value unless they affect what happens when somebody arrives at work, enters a hospital, joins an activity or needs to use a basic facility.
Dignity is not demonstrated by a sentence in a policy. It is demonstrated by the experience the policy creates.
In a recent discussion with organisational leaders, the conversation repeatedly returned to trust. How can an employee trust an organisation that says they are valued but leaves them to negotiate their own safety? How can a patient trust a healthcare provider if attending an appointment creates anxiety about being challenged, redirected or exposed? How can a customer trust a service where access depends upon accepting separation or additional scrutiny?
People using a service have to place a degree of trust in those who design and manage it. They trust that the environment will be safe, usable and predictable, and that staff will know how to respond without unnecessary escalation or humiliation.
The organisation cannot accept that trust and then make the individual responsible for repairing deficiencies in its own provision.
If I cannot access your service with dignity and safety, that is a failure of your provision—not a failure of my identity.
Dignity must therefore be considered at the point the service is designed, not added as reassuring language after the important decisions have already been made.
The organisation creates the environment
There is a useful parallel with the social model of disability. The comparison is not exact, but the underlying question is instructive.
The social model asks organisations to look beyond an individual’s body or condition and examine the barriers created by buildings, processes, attitudes and assumptions. A flight of steps disables a wheelchair user because an accessible route was not provided. Inaccessible information excludes somebody because the communication was poorly designed.
A similar organisational challenge arises here.
If a trans person cannot use a service without being segregated, exposed or placed under suspicion, the provider should not begin by treating the person’s identity as the source of the problem. It should examine what it has designed, required or failed to provide.
The organisation chose the building layout, the signage, the access rules and the staff instructions. It decided how complaints would be handled and what would happen when somebody challenged another person’s presence. It determined whether privacy was improved for everybody or whether one group would be singled out for different treatment.
Those choices create the environment people must navigate.
A poorly designed environment can turn an ordinary activity into a continuing assessment of risk. A person may enter a building and immediately begin calculating which space is safe, who is watching, whether they may be challenged and whether it would be easier simply to leave.
This is the hidden cognitive load behind many apparently minor facilities decisions.
A cinema visit may involve assessing the rush to the toilets when the film ends. A hospital appointment may include concern that a challenge will expose private information in front of other patients. A visit to a gym, swimming pool, museum or motorway service station may require advance planning that most other people never need to consider.
For some trans people, every journey now carries an additional question: what will happen when I need to use the facilities?
The issue is therefore not “just toilets”. It concerns a person’s ability to travel, work, exercise, receive healthcare and participate in ordinary public life.
Another door is not automatically equivalent provision
Offering an additional or private facility can be a constructive part of inclusive service design. Many people value greater privacy, including disabled people, parents and carers, people with particular faith or cultural needs, and anyone who feels uncomfortable in communal changing environments.
A well-designed private option can improve provision for many users.
The difficulty arises when that option is imposed on trans people as a substitute for ordinary participation, particularly where it is inferior, inconvenient or identifying.
A third space is not inherently inclusive or exclusionary. Its quality, location and method of use matter.
An organisation should consider whether the alternative is open at the same times, situated within a reasonable distance and maintained to an equivalent standard. It should examine whether somebody needs to ask for access, disclose personal information or draw attention to themselves in order to use it.
It should also consider whether the space has another primary purpose. Redirecting a trans person to an accessible toilet, for example, may reduce availability for disabled users while implying that disability provision is a convenient overflow solution for any difficult facilities question.
The organisation should ask whether the person can use the alternative without being identified, delayed or disadvantaged. It should also test whether the proposed arrangement works during busy periods, overnight shifts, emergencies and situations where the usual manager is unavailable.
Providing something is not the same as providing genuinely usable and equivalent access.
The correct question is not simply, “Is there another room?” It is, “What experience does our proposed arrangement create, and who must carry its additional burden?”
Policies that depend on identifying trans people
A further practical problem arises where a policy can operate only if staff know—or believe they know—who is trans.
Not every trans person is visibly trans. Not every person perceived to be trans is trans. Women, whether trans or not, do not all conform to somebody else’s expectations about appearance, voice, clothing or behaviour.
A rule based on appearance will therefore produce mistakes. It will encourage scrutiny of anyone who does not conform to a stereotype and may lead to intrusive questions, public challenges and the disclosure of private information.
It also places frontline workers in an impossible position. They may be expected to enforce a rule without a lawful, respectful or reliable way of establishing the information on which it depends.
A policy that looks clear in a board paper may become unworkable the moment it meets an actual person.
This is why behaviour-based rules are generally more operationally useful than identity policing. Organisations can establish expectations around privacy, nudity, photography, sexual conduct, harassment, intimidation and respectful behaviour. They can investigate incidents and respond to evidence of misconduct.
They do not need to presume that somebody presents a risk because of how that person looks or because another user speculates about their identity.
Managing behaviour allows an organisation to address an actual problem. Policing identity requires it to create one.
What responsible provision looks like
Responsible provision does not require an organisation to promise that nobody will ever be uncomfortable or that every competing interest can be reconciled perfectly.
It requires the organisation to take ownership of the decision and its consequences.
The process should begin by identifying the exact service, facility or activity under consideration. An organisation must understand whether it is acting as an employer, service provider, public authority or association, because different legal provisions may apply to different parts of the same organisation.
It should then define the legitimate purpose it is trying to achieve. General unease, anticipated criticism or a demand from an external campaign group is not a substitute for identifying the actual organisational need.
The organisation should gather evidence and consider everyone affected, rather than treating the most vocal person as the only relevant stakeholder. Sex and gender reassignment should be considered as separate protected characteristics, alongside any relevant issues involving disability, religion or belief, sexual orientation, age, privacy and safeguarding.
Potential alternatives should be tested honestly. That includes examining whether improved privacy, revised layouts, better conduct rules, individual arrangements or mixed provision could meet the objective with less detriment.
The operational reality must also be examined. Who will enforce the decision? What information will they need? How will complaints be handled? Could implementation require intrusive questioning or unlawful data processing? What happens when staff cannot confidently categorise the person standing in front of them?
Finally, the reasoning should be recorded at the time. A decision reconstructed after a complaint is not the same as a decision reached through a documented process.
The responsibility remains with the duty-bearer throughout. It cannot be delegated to the trans person by telling them to find a workaround.
Turning responsibility into documented action
This is where governance tools become important.
The Trans Inclusion Toolkit has been developed to help organisations examine the real effect of a proposed decision before it becomes a live incident. Its assessments, legal authority catalogue, personas and realistic scenarios allow decision-makers to move beyond abstract positions and test how a policy would operate in practice.
The Facilities & Spaces Check helps organisations examine the provision they currently have and identify where privacy, accessibility or implementation gaps may create avoidable detriment.
The Proportionality Check supports a structured examination of the objective, evidence, alternatives and likely impact of a proposed decision.
The EqIA/DPIA Wizard helps record equality and data-protection reasoning as the decision is being developed, rather than reconstructing it afterwards.
Flashpoint allows a policy or proposed arrangement to be rehearsed against realistic situations and evidence-based personas before staff are expected to apply it under pressure.
These tools do not make the decision for the organisation, and they do not guarantee that every affected person will agree with the outcome. They help ensure that the organisation has asked the right questions, considered the human consequences and retained an evidence trail showing how it reached its position.
The Toolkit is available to demonstrate now, with priority registration open ahead of its wider public release.
The legal environment will continue to develop. What should not change is the underlying responsibility of employers and service providers to own the environments they create.
An organisation cannot control every disagreement. It can control whether its response reduces barriers or merely transfers them onto the person with the least power to resist.