The live question for councils is not who can enter a civic building — nobody is seriously proposing a trans person be turned away from a library, a leisure centre or a community hall. It is how specific services and facilities within those buildings — toilets, changing rooms, single-sex sessions, communal residential spaces — are lawfully configured. Councils are required to decide that well, case by case, on the evidence, and record their reasons. This briefing sets out the legal position for councillors and senior officers responsible for those services and facilities.
This is the services-and-facilities briefing. It is distinct from the toilets and signage playbook, which covers the workplace and service-provider signage regime in more detail. Both apply in a council context, but to different statutory frames.
What the law actually says
The legal framework for council services and facilities rests on three things.
For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 held that “sex” in the Equality Act 2010 means biological sex for the services provisions (Schedule 3) and the Public Sector Equality Duty (s.149). What it did not do is as important as what it did:
- It did not remove the protected characteristic of gender reassignment (s.7). That protection is fully in force.
- It did not require councils to bar anyone from buildings, or to exclude anyone from a service as a starting point.
- It did not make trans-inclusive provision unlawful.
- It did not impose any blanket rule. It changed the framework for analysis, not the answer.
The Supreme Court was explicit that a lawful single- or separate-sex service requires a separate analysis of the needs of both female and trans members. Skipping that dual analysis is itself a legal error.
The EHRC Services Code 2026 was commenced by SI 2026/788 (made 14 July 2026, in force 5 August 2026), with the 2011 Code revoked the same day. From 5 August 2026 it is in-force statutory guidance — admissible in evidence and to be taken into account by courts and tribunals where relevant. It remains the regulator’s interpretation, not a statute.
The Equality Act 2010 duties and the Public Sector Equality Duty apply now, unchanged. The duties the council must meet today are already on it.
The core principles
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Process over outcomes. The legal question is not “was the answer right?” but “was the decision-making lawful, evidenced and proportionate?” A council that follows good process is protected even where reasonable people disagree with the outcome.
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Case by case, never blanket. A blanket rule excluding people from a service or facility on the basis of a single protected characteristic is unlawful. Decisions must be made on the facts of the individual situation.
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Proportionality. Any departure from mixed-sex provision must meet the four-part proportionality test — legitimate aim, rational connection, necessity (least intrusive means), and fair balance. Contemporaneous reasons must be recorded.
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No one left with no usable service. The government’s own Equality Impact Assessment calls leaving a trans person with no service they can use “double exclusion,” and it is “very unlikely to be proportionate.”
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Record the reasons. The reasoning, the evidence considered, and the factors weighed should be documented at the time. This is the audit trail that protects the council and the decision-maker.
Behaviour, not identity
The EHRC’s direction is clear: manage behaviour, do not police identity. A council’s concern is conduct — harassment, intimidation, making others unsafe — not whether a person’s apparent sex matches their birth sex. Incidental use of facilities is not to be policed. Where there is genuine misconduct, address the misconduct directly.
There is no UK document that reliably evidences biological sex for service access, and attempting to verify it risks unlawful data processing and breaches of dignity. A restriction that cannot be operated lawfully at the door cannot be lawfully maintained — so the cost of policing a sex-restricted facility belongs in the decision about whether the restriction is needed, not discovered after.
Service design reduces flashpoints
Most flashpoints at a toilet or changing-room door are a design problem before they are a people problem:
- Gender-neutral options alongside sex-specific ones, so no one is forced into the wrong space or left with nothing.
- Clear, inclusive signage that tells people what is available and where.
- Floor-to-ceiling privacy in toilets and changing rooms, so the people using the next cubicle are not each other’s concern.
Good design lowers the temperature and generates fewer complaints — which is itself evidence of proportionate decision-making. The facilities walk-survey checklist is the building-by-building tool for this audit.
Myth vs law
| The claim you will hear | What the law actually says |
|---|---|
| ”The Council has to keep trans people out of its buildings.” | Nobody is asking for that, and no law requires it. Building entry is not the question; the question is how specific services and facilities within buildings are configured. |
| ”For Women Scotland means trans people must be excluded from services.” | It fixed the meaning of “sex” for certain provisions. It did not mandate exclusion or remove trans people’s protection. |
| ”The Council must now ban trans people from single-sex facilities.” | Exclusion is never mandatory; blanket bans are unlawful. Decide case by case, on the evidence, record reasons. |
| ”Including trans people is now unlawful.” | Trans-inclusive provision is lawful. Gender reassignment remains protected. |
| ”We must verify everyone’s birth sex.” | No UK document reliably evidences biological sex for service access; intrusive verification risks unlawful data processing. |
| ”Trans people can just use the other facilities.” | Leaving someone with no usable service is “very unlikely to be proportionate.” |
What this means for your role
Councillors. You need the legal position and the principles to hold officers to account and to take governance decisions. Ask whether the council’s decisions about services and facilities are case by case, whether reasons are recorded, whether blanket rules are in force anywhere, and whether anyone is left with no usable service. If the answer to any of those is yes, that is the governance gap to close.
Senior officers and lead directors. You are responsible for translating these principles into operational guidance. The council’s decision-making framework should meet the four-part proportionality test, reasons should be recorded contemporaneously, and no blanket rules should be in force. The EHRC Services Code explainer sets out what the Code does and does not do.
Facilities leads. Service design reduces flashpoints. Audit current provision of services and facilities — toilets, changing rooms, single-sex sessions — against the three design principles above. The facilities checklist is the building-by-building walk-survey tool. The toilets and signage playbook covers the design principles in more detail.
Policy owners. Check that current policies reflect the principles — process over outcomes, case-by-case decisions, no blanket rules, no one left with no usable service, reasons recorded. Where policies predate the commenced Code, review them against it. Use the decision record template for each contested decision.
Take this further
The single-sex spaces manager decision framework sets out the proportionality test in operational form, and the eight-gate assessment walks the full sequence of questions — is it single-sex, does it need to be, what options are there, and how would it be operated and maintained. For a school-facing context, the school toilet complaints guide covers a different statutory frame but the same method.
For the full council implementation guidance — the four-workstream playbook (Legal and Governance, Managing public-facing staff, Managing physical spaces, Policy owners), decision-making framework, scripts, signage standards, commissioning contract clauses and reasoning templates — see Consulting.
This briefing provides general information and does not constitute legal advice. It is a governance briefing grounded in the current legal frame; for formal proceedings or contested matters, instruct a solicitor or barrister.