The EHRC Services Code of Practice: The Position on Public Toilets

Legal background

In April 2025, the Supreme Court held in For Women Scotland v Scottish Ministers that “sex” in the Equality Act 2010 means biological sex. The EHRC’s Code of Practice for Services, Public Functions and Associations, which governs how public bodies and other service providers apply the Equality Act, including in the provision of public toilets has now been revised accordingly and came into force on 5 August 2026, replacing the 2011 code.

This sits alongside, but is legally distinct from, the position for workplace facilities under the Workplace (Health, Safety and Welfare) Regulations 1992, which the High Court addressed separately in April 2026. Councils operating public toilets as a service to the public fall under the Services Code; the same council’s staff facilities may fall under the separate workplace regime. The two frameworks currently point in a broadly similar direction, but they are not interchangeable, and a position that is defensible under one may not automatically transfer to the other.

What the Code requires

Where it is proportionate to provide single-sex services, which the Code treats public toilets as a clear example of, access must be organised by biological sex, not gender identity. A trans person should not be expected to use a facility for their biological sex if that would leave them without adequate provision. The Code is explicit that this can itself amount to gender reassignment discrimination. Gender-neutral facilities are the route the Code points to for resolving that tension.

The code states that questioning someone’s eligibility to use a facility is unlikely to be practical or appropriate as a general approach, but it may be legitimate on a case-by-case basis where a concern is raised about a specific individual’s presentation. Operationally implementing this in a proportionate manner is left to the service provider to judge. Healthmatic believes this is ambiguous, onerous and unclear.

The technical detail: urinals and universal toilets

Separately from the Equality Act position, Building Regulations Part T (Approved Document T) dictates how toilets are segregated by sex. In particular, it states that urinals may only be provided within a male-designated facility. Should a urinal be included in a direct access toilet then this must be male designated. This is a construction standard, not an equality law requirement, but the two now need to be read together when specifying or altering a site.

 

Where this gets less clear-cut

• • Re-designating an existing accessible toilet cubicle ( Part M Compliant) as the site’s universal toilet is a practical route to compliance, but it raises a separate question about whether provision for disabled users remains adequate once that cubicle is opened to general use. Including a radar key on an accessible unisex facility would only complicate matters further and result in discrimination against a trans or non trans person who is hoping to use the facility.

• • Removing RADAR key restriction from an accessible toilet to make it genuinely open to all who can rely on that facility. Our views are that this is a necessity as access would be restricted to RADAR key holders which generally does not include trans people.  Therefore, it is essential that access is the same for all facilities at a particular location (i.e. either paid for or free of charge whether its male, female, DDA or Unisex).

• • Where a site has only single-sex and accessible provision, with no separate gender-neutral cubicle, the Code’s requirement for alternative provision might not be straightforward. The right fix depends on the site’s layout and constraints. In an ideal world, there would be a unisex provision and a separate DDA provision. If this is not possible, then our recommendation would be to alter the DDA provision to make it open to all as per the above suggestion.

• • How a council should document and evidence their rationale behind their specific layout is not prescribed by the code.

The Code is guidance and does not create new law in itself, but courts and tribunals are required to take it into account when assessing whether an organisation’s conduct is lawful under the Equality Act, which carries real weight. Getting the detail right, site by site, is what determines whether a council’s position is actually defensible if it’s tested.

Talk to us

We work with councils across the UK on exactly this kind of site-specific detail, from layout and signage through to the doors and access control equipment required. If you’d like to talk through what this means for a particular site, get in touch.