The recent Supreme Court decision in For Women Scotland Ltd v Scottish Ministers continues to generate headlines and has significant implications for workplace policies, particularly concerning gender identity and sex-based rights. The Supreme Court held that, for Equality Act 2010 (EqA 2010) purposes, the definition of "woman" refers to a biological woman and the definition of "sex" refers to biological sex.
EHRC interim update
Amidst ongoing discussions on the ruling, the Equality and Human Rights Commission (EHRC) published an interim update on 25 April. This will be replaced by an updated statutory code.
The update says 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. This obligation comes from the Workplace (Health, Safety and Welfare) Regulations 1992 (the Regulations), which state that there is an obligation to provide single-sex toilets except where they are in a separate room and can be locked from the inside.
There is nothing in the Regulations which deals with trans provision when it comes to toilets which is perhaps hardly surprising as provision for gender reassignment only appeared in 2010 in the EqA 2010. So, in a nutshell, it will be fine to have a single toilet with a lockable door which is only for use by one person at a time and which can therefore by used by both sexes, i.e. a mixed sex toilet.
In terms of the statutory code, initially the EHRC proposed a two-week consultation period for people to feed in their views, aiming to have the finalised code in place by June. The House of Commons Women and Equalities Committee (WEC) wrote to the EHRC asking for the consultation period to be extended to at least six weeks. The EHRC has taken heed of this request and on 20 May issued consultation on the code to gather feedback on the proposed changes it has made to it following the Supreme Court's decision. The consultation closes on 30 June. Once the EHRC has reviewed the responses received and made the necessary amendments to the statutory code it will submit it to the Minister for Women and Equalities for approval and laying in Parliament.
A quick recap
This all started with For Women Scotland's challenge to the inclusion of trans women with a Gender Recognition Certificate (GRC) in the definition of "women" under the Gender Representation on Public Boards (Scotland) Act 2018. Following years of litigation and associated public debate, the case ended up in the Supreme Court, which decided unanimously that "sex" in the EqA 2010 means biological sex only (and not the sex stated on a GRC).
The Supreme Court emphasised that trans people remain covered by separate protections against discrimination under the EqA 2010 on the grounds of gender reassignment and/or perceived sex. However, the decision does have wider ramifications for employers and service providers, who have previously made case by case decisions on sex and gender classification in relation to things like access to toilets and changing rooms.
Implications for employers
While the Supreme Court's decision is clear, how it should be implemented is far from straightforward. Our Trowers Tuesday poll reveals that many of you (69%) have decided not to change your existing policy on the use of toilets and changing facilities, with 4% of you implementing changes and 26% thinking about it.
From a practical perspective alone, the policing of single-sex toilet use is fraught with risk. What happens if a trans individual has historically used the facilities of their reassigned gender without any complaints and is told not to, thereby potentially drawing attention to the fact that they are trans (something that others may not have been aware of)? In this scenario, asking a trans woman to start using the male toilet is probably not advisable, but if there is a unisex toilet available this is a good compromise. It will be important though to be sensitive with your messaging and explain the reason behind it.
Alternatively, if there are no complaints from existing members of staff, it may be possible to continue to let the employee use the female toilet until more comprehensive guidance is issued. You do need to be aware though, that doing this may expose you to claims of discrimination from women who object to the presence of a trans woman in the female toilets.
When the House of Lords debated the EHRC interim update on 1 May, it emphasised that it is "a snapshot reflection rather than full guidance" and so, until full statutory guidance has been produced, we believe that this is the view employers should take (especially in light of the suggestions that the final guidance may not entirely align with the position in the update!). If it is possible to provide unisex toilets, then this is an acceptable stop gap pending the finalised guidance.
Practical measures
It's hard to be too definitive about this in light of the lack of any statutory guidance from the EHRC. As a first step though, it will be a good idea to identify policies that need updating and if there are changes to the terminology used this should be flagged. It's probably worth waiting for the final guidance so that a proper review and amendment process can be carried out across all the relevant policies rather than just taking a piecemeal approach.
In the meantime, fostering an inclusive culture has never been more important, and it will be key to reinforce the message that discrimination and harassment will not be tolerated and that equality, diversity and inclusion are measures that will be proactively pursued and implemented.
Make sure that there are clear communication channels and that employees know how to access support and guidance should they need it, and deal with any concerns raised in light of the Supreme Court decision with sensitivity.
Needless to say, when the EHRC publishes the final approved statutory guidance, we'll fill you in on the detail!
