Few can have missed the Supreme Court's recent judgment that "sex" and "woman" under the Equality Act 2010 (EqA) means "biological sex." "Sex" doesn't refer to gender identity or to the gender recognised on a Gender Recognition Certificate (For Women Scotland Ltd v The Scottish Ministers).
As a result of the judgment, a trans woman (for example) cannot bring a discrimination claim on the basis that they've been discriminated against for being female. They could however bring a claim for being discriminated against because of they are trans (gender reassignment), or because they are biologically male.
The case has sparked significant debate in the media and online, and has raised a number of complex practical issues for employers. To try and calm the waters, the Equality and Human Rights Commission (EHRC) has published interim guidance for employers and service providers.
The Interim Guidance
The interim guidance from the EHRC provides the following points:
- Of particular importance to employers, it is now compulsory for
employers to provide adequate single-sex toilets, as well as
single-sex changing and washing facilities where required within
the workplace.
- Trans women (biological males) should not be permitted to use
women's facilities, and trans men (biological females) should
not use men's facilities, as doing so would render the spaces
no longer single-sex and open them to individuals 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 woman) not to be permitted to
use the women's facilities.
- Where facilities are available to both men and women, employers
must ensure that trans individuals are not left without access to
any facilities.
- Where possible, employers are encouraged to provide mixed-sex toilets, washing, or changing facilities in addition to sufficient single-sex options.
The guidance makes clear that 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. However, the guidance notes that it may count as indirect sex discrimination against women if the only provision for facilities is mixed sex (unless it is a proportionate means of achieving a legitimate aim).
Practical Steps for Employers
It is important to remember that every protected characteristic under the EqA is equal. Sex isn't better protected than gender reassignment, and the Supreme Court deliberately reiterated that.
Employers should start by reviewing their policy on the use of facilities, because the interim guidance is clear that employers should not allow trans people to use the toilet of the sex they identify as. Where possible, it seems the most practical solution following the judgment is likely to involve creating suitable third spaces. For example, reviewing what mixed-sex or gender-neutral facilities currently exist and assessing whether any additional spaces could reasonably be redesigned to be mixed sex. However, simply reclassifying most existing single-sex toilets as 'unisex' or 'inclusive' is unlikely to meet the Health and Safety Executive's standards, which require mixed-sex toilet facilities to be fully enclosed lockable rooms.
If businesses employ members of the trans community who until now have been using toilet/washing facilities based on how they identify rather than their biological sex, the Supreme Court's decision and EHRC guidance is going to mean having a very sensitive and delicate conversation with your trans employees. Whilst employers in the private sector are not legally obligated to carry out EqA impact assessments, in this instance an EqA impact assessment might help you navigate these sensitive issues – particularly where you have trans employees.
Future Updates from the EHRC
The EHRC has announced that it is preparing more detailed updated guidance. Its aim is to submit a revised Code of Practice to the UK Government by the end of June. The legal position on the issue of "sex" under the EqA as meaning "biological sex" is now clear. The EHRC has therefore confirmed that its consultation will not seek views on the legal aspects. Instead, the revised Code will focus on helping service providers, public bodies, and associations comply with their EqA duties. Until it is updated, businesses are best advised to comply with the guidance set out above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
