Equality Watchdog Guidance On Single-sex Facilities

Following the Supreme Court's recent ruling on the definition of "man", "woman" and "sex" in the Equality Act 2010, the Equality and Human Right's Commission (EHRC) has just (late on Friday 25th April) issued an interim update on the practical implications of the UK Supreme Court judgment.

The update aims to provide an immediate explanation of the judgment and re-assure service providers that further guidance is coming.

Unfortunately, the position for employers remains unsatisfactory.

What does the interim update say about workplaces?

The interim update states that:

• In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.
• Trans women (biological men) should not be permitted to use the women's facilities and trans men (biological women) should not be permitted to use the men's facilities, as this will mean that they are no longer single-sex facilities and must be open to all users 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.
• However 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

What does this mean for employers?

The interim update makes it clear that where a single-sex facility is provided, an employer should not allow trans people to use the facility aligned to the sex with which they identify.

However, this does not address how to balance the provision of single-sex facilities against the rights of trans people not to experience gender reassignment discrimination and harassment, in particular where there are no suitable or equivalent facilities for them. Claims are still possible because the Equality Act does not give employers the protection from trans-related discrimination claims that is given to service providers.

This means that, as things stand, there are risks of sex discrimination claims if employers don't follow the EHRC guidance, but no practical answers as to how to mitigate the risks of gender reassignment discrimination claims associated with moving away from more inclusive provision.

The interim guidance suggests that the provision of mixed-sex toilet, washing or changing facilities will address this challenge and, whilst that may be a longer-term solution (if equitable mixed-sex facilities can be provided), it does not address all the practical challenges faced by employers in the short-term. In many workplaces, there are either no mixed-sex facilities at all (this is particularly the case with washing and changing facilities) or the only mixed-sex facility is just one accessible toilet.

Whilst the interim guidance acknowledges that trans people should not be put in a position where there are no facilities for them to use, it provides no guidance at all on how employers are expected to ensure that, given the limitation of some current facilities.

A key practical point arises, for example, in the case of a trans man who is not known by colleagues to be trans, and has been using the male facilities without any complaints or questions, and who is now suddenly required to use the women's facilities. It is hard to imagine that the EHRC intends that an employer should be required to "out" a trans employee (particularly one who may have a Gender Recognition Certificate), which would carry discrimination risk.

What is the law on single-sex toilets in workplaces?

The EHRC guidance that it "is compulsory to provide sufficient single-sex toilets" could be misconstrued.

Health and Safety regulations say that separate toilets for men and women are required "except where each toilet is in a separate room lockable from the inside". A fully mixed-sex toilet provision is allowed under these regulations, provided they meet these conditions. If you have toilets which are not in separate lockable rooms, then the health and safety regulations say that you must have separate provision for men and women.

The Health & Safety Executive's guidance also sets out the minimum number of toilets that you should have, which depend on whether they are for mixed use (or women only) or use by men only.

As these Health & Safety regulations were drafted in 1992, before any provision for gender reassignment was made in equality legislation, it's unsurprising that they don't address trans provision.

The Equality Act itself doesn't specifically address private single-sex facilities in workplaces. It deals with single-sex facilities which are made available by service providers, but not those made available by employers solely for their staff.

What practical steps can employers be taking?

As the most likely solution appears to be identifying suitable third spaces, it is sensible for employers to audit their current facilities to understand what mixed-sex facilities they already have and whether any additional facilities could – or should - be redesignated as mixed-sex spaces.

In relation to toilets, a simple redesignation of most existing single-sex toilets as – for example – unisex, or inclusive - would be unlikely to meet the HSE conditions for mixed-sex toilets, which need to be in individual lockable rooms.

However, as the redesignation of existing spaces might be the most practical immediate way of creating mixed-sex space in the short term, employers may need to work with their building consultants and landlords to find the right balance of facilities for their premises and workforce.

What will the EHRC do next?

The EHRC has said it is working on updated statutory and non-statutory guidance and that its aim is to provide an updated Code of Practice to the UK Government by the end of June for ministerial approval (on which there will be a two-week consultation period in May).

There is currently a Code of Practice covering service providers, public bodies and associations, and a separate Code or Practice for employment. It's unclear whether both codes will be updated, as the interim update states that the updated code will "support service providers, public bodies and associations to understand their duties under the Equality Act and put them into practice." However, the rules for employment are in a different part of the Equality Act (as explained above) and it will be important for employers to have clear and separate guidance from the EHRC which does not conflate these two areas of law.