Biological sex and the Supreme Court Judgment: what are the practical implications for employers?
The recent decision by the Supreme Court in For Women Scotland confirmed that the definition of ‘woman’,’ man’ and ‘sex’ in the Equality Act 2010 is based on biological sex. Now that this clarification has been provided by the Supreme Court, what does this mean for employers and the workplace?
Much of the discussion since the decision has centered around the use of single sex facilities i.e. toilets, washing and changing facilities. The Supreme Court touched upon this in relation to trans people’s access to single sex facilities in public spaces for service providers but was silent on the responsibility of employers. Indeed, much of the debate since the decision has conflated the law for service providers and the law for employers. This article will help you to understand your obligations as an employer.
What is the law?
Access to single sex facilities in the workplace is governed by the Workplace (Health, Safety and Welfare) Regulations 1992 and not the Equality Act 2010. In accordance with these regulations, single-sex facilities must be provided in the workplace unless adequate gender-neutral provision can be made. To be gender-neutral, the facility must be in a room lockable from the inside for individual use, e.g. a room lockable from the inside with a toilet and hand-basin. A lockable cubicle within a room will not suffice. The 1992 Regulations were written some years before the Gender Recognition Act 2004 and are silent on any provision for transgender employees.
What does the Equality and Human Rights Commission (EHRC) say?
In an interim update the EHRC has stated that it is compulsory in workplaces to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed. The update also states that “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”.
In respect of trans employees, the update states that:
- 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
This is an interim statement issued by the EHRC in response to questions raised by the Supreme Court Judgment. The EHRC are proposing to amend the statutory code of practice for services shortly which will be legally binding. There is currently no such proposal to update the code of practice on employment.
What practical steps can you take as an employer to comply with the judgment?
The Supreme Court made it clear that trans people continue to have protection from discrimination under the protected characteristic of gender reassignment. Employers must now carefully balance any conflicting rights between women and transgender people, whilst not undermining trans people’s rights. Here are some practical steps that you can undertake:-
- Conduct a risk assessment of your facilities provision and their suitability in terms of privacy, safety and propriety for all employees and in particular in relation to women, people with religious beliefs, people with disabilities and transgender people.
- As part of your risk assessment consider whether you have facilities in rooms lockable from the inside for individual use. If you do have this type of facility at your workplace, it is more likely that you could designate these spaces as genderless and lawfully operate an “inclusive” policy of allowing anyone to use them.
- Where there is insufficient facilities to operate a genderless provision consider whether there are any changes that can be made to existing spaces to provide a genderless space that complies with the 1992 regulations.
- Changing female facilities to genderless is unlikely to be sufficient. This would reduce the number of facilities available to women which could cause a group disadvantage to women, amounting to indirect discrimination. This is also unlikely to be compliant with the 1992 regulations.
- If you have transgender staff in your workforce, remember that other staff may not always be aware that a colleague is transgender. Forcing a transgender person to use the facilities aligned with their birth sex for lack of suitable genderless facilities could effectively be outing that individual. In these circumstances, it is sensible to give careful thought to a genderless provision as a first step.
- Remember no employee should be left without suitable facilities.
Employers must navigate this area sensitively giving careful thought to creating and maintaining safe spaces for everyone in the workplace. It is important for employers to continue to maintain a respectful and inclusive working environment where all employees’ rights are upheld under the Equality Act. We are likely to learn more in the coming weeks as the EHRC commences consultation on the statutory code of practice for services, which aims to start on 19 May. Although this is limited to services there are calls for a similar update to the code of practice on employment which may bring further guidance for employers. Any future guidance will be brought to you via our People Spotlight articles, as soon as that information is available.
