Where’s my toilet? ECHR Interim Guidance on single sex spaces
Where’s my toilet?
EHRC Interim Guidance on single sex spaces
I have lost count of how many times, over the past decade, I have deleted the word “gender” in a client’s equality policy and replaced it with the word “sex”, not through any ideological conviction but simply because it reflects the wording in the Equality Act 2010. The wording is, however, innately political – should the female toilets and the female changing rooms be accessible by those whose gender identity is female or only by those of the female biological sex? The law is now clear.
It may surprise some that the law was not clear in the first place, but there are plenty of cases going through the courts, such as the “Darlington nurses” case, in which eight nurses are suing the NHS over their employer’s decision to allow a transgender colleague to use the female changing room.
To be fair, it has been pretty confusing, given that employees (and service users) are protected from discrimination on the grounds of “sex” (hence the Darlington Nurses cases) yet also on grounds of gender-reassignment, an arrangement bound to lead to a clash.
In the widely publicised case For Women Scotland v The Scottish Ministers, the Supreme Court decided that references to women in the Equality Act meant those who were biologically women and not those who chose to identify as women, even if they had a gender recognition certificate.
What does this mean for employers? The Equalities and Human Rights Commission has rushed out some interim guidance on the topic, pending a consultation in May and its official update to the Code of Practice expected in June. Here’s what the EHRC says employers should do…
trans women (biological men) should not be permitted to use the women’s facilities
trans men (biological women) should not be permitted to use the men’s facilities.
That’s the easy bit, legally, although more difficult in practice for employers who have allowed transgender employees to use the facilities of their choice and, no doubt, for those individuals compelled to use facilities relating to a gender they have rejected, some of whom might be “outed” by the process. However, it gets more complex.
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.
This is a reference to a passage in the judgment “This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided.”
The EHRC goes on to say:
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
As is often the case with the law, the theory can be easier than the application. Practical issues employers might encounter include changing existing arrangements for transgender staff which have worked without challenge until now, or dealing with an employee that the employer believes to be transgender but this has never been volunteered by the employee themself. In the case of toilets and changing rooms, it will also be easier to comply with the law if you have lots of space for multiple categories of changing rooms and toilets!
