Podcast: The meaning of biological sex under The Equality Act

Welcome to this podcast. I’m Saira Ramadan, partner at Hempsons, and today’s session is about the meaning of sex under the Equality Act, following on from the Supreme Court’s judgment in the case of For Women Scotland and the Scottish Ministers.

So, the judgment in that case, as most people will already know, was an important one because what it found is that under the Equality Act, the meaning of sex is based on biological sex. So, a trans woman is a biological man, and a trans man is a biological woman, and that is for all intents and purposes, how they should be treated under the Equality Act.

So, looking at what that means in practice in relation to day-to-day and issues that might arise in the workplace. The first thing that is worth talking about and is the question that tends to be on most people’s lips is about how you deal with the situation of toilets in the workplace. So, with this decision in mind, what are you supposed to do in terms of who you let use what toilets? And it’s worth noting that the Equality Act and the Supreme Court’s judgment, neither of those expressly deal with the issue of toilets, because the Equality Act doesn’t cover the provision of toilets specifically, and the case that the Supreme Court had to determine wasn’t specifically on the point of toilets.

The requirement for a workplace to provide toilets and toilet facilities comes from the Workplace Health, Safety and Welfare Regulations 1992, and what they basically say is that a workplace must supply suitable and separate facilities for toilets, for men and women, unless as an alternative, separate lockable rooms can be provided. So, singular rooms that are lockable from within.

Now, we know that the Supreme Court’s judgment on the meaning of sex applied specifically to the Equality Act, but by way of extrapolation as to how that might impact on other legislation and regulations, I think it’s fair to take the approach that the meaning of man and woman and sex for the purposes of these regulations will also be interpreted in the same way. So, biological sex rather than acquired sex for trans people.

So, there is a schedule to the Equality Act, Schedule 22, which provides something called an enactment defence, and it’s something that hasn’t been overly used historically, but is undoubtedly going to come up a lot more frequently in the future because of the requirement for the provision of single sex toilets or alternatively single lockable rooms. And paragraph two of the Schedule 22 of the Equality Act basically says that an employer doesn’t contravene the equality Act if they do something in relation to a woman that they’re required to do in order to comply with the Health and Safety at Work Act and the workplace regulations, if what they’re doing is for the protection of women.

So, it provides that safeguard or defence as it were, when you are doing something for the protection of women. And paragraph one of the same schedule says that an employer doesn’t act in breach of the Equality Act if it does something that is required. So those defences are quite relevant and helpful when considering your possible options when it comes to the provision of toilets.

So, in my view, there are probably five potential options for how you set up your toilet provisions in the workplace, and each of them comes with different benefits and pitfalls, some with more risk than others, and I’ll just go through those with you.

So, the first option is having separate sex toilets only. Now that wouldn’t be sex discrimination under the Equality Act because as we just saw with the Schedule 22 enactment defence, it would be a defence for an employer to provide single sex toilets only, because they could argue that it is being done for the protection of women and men, of course. So, a defence would be available.

It also wouldn’t be direct gender reassignment discrimination because it would be because of sex and not gender rea assignment that somebody would be treated less favourably in being required to use a particular toilet for a particular sex. It could potentially be indirect gender reassignment discrimination, but as you might know, for indirect discrimination, there is available to employers the objective justification defence, that what you are doing is a proportionate means of achieving a legitimate aim. And if you can demonstrate that, then you would have a defence to an indirect gender discrimination gender reassignment discrimination claim. There is also the potential for perceived discrimination. For example, a woman who is perceived to be trans but is not trans being compelled to use a particular toilet.

The second option would be unisex only toilets. So not providing specifically male or female toilets, but unisex only. That wouldn’t be direct discrimination because there’d be no less favourable treatment to either sex because everybody would be entitled to use the toilets and nobody would be denied entry. However, the enactment defence here wouldn’t kick in because the enactment defence is not relevant when we’re talking about unisex toilets because you are providing, obviously, access to all, and you are not discriminating against one particular sex by having separate sex facilities.

However, if you only provided unisex toilets, arguably you could be in breach of the regulations unless you are providing those unisex toilets by way of separate lockable rooms with self-contained facilities, such as wash basin and toilet, sanitary bin, etc. So, separate lockable rooms that are self-contained with all the facilities one might need within a washroom might be a solution if you have the infrastructure in place.

Option three would be separate sex toilets with self-identification. So, employers not making inquiries or making attempts to categorise their staff based on biological sex but allowing people to self-identify and use the toilets that align with their acquired gender or their self-identification. In that scenario, trans people could use the toilet that aligns with their acquired gender. So obviously that’s an upside for them, but that does create a risk of both harassment and direct sex discrimination complaints, particularly from those with whom trans people will be sharing toilets. And if they feel that they are being put in a position where they are not having the benefit of single sex separate toilet facilities.

Option four is separate sex toilets with a third unisex toilet space, which again, is a really viable solution if you have the infrastructure in place or can accommodate it. What often employers might consider doing and might be a viable way forward is repurposing a disabled toilet as a disabled and all genders toilet. And this is the approach that the Equality and Human Rights Commission advocates in its interim guidance. You do need to consider the signage that you use if you take this approach, for example, branding it as accessible and all gender rather than just disabled.

Theoretically, you could get claims from transgender people in this scenario saying that it is unfavourable treatment to require them to use disabled toilets or from disabled people saying it’s unfavourable treatment to be required to use all gender toilets and not a bespoke accessible space, but on balance, I suspect that the risk from those such claims and allegations is going to be much more limited and therefore the risk much more limited.

The fifth option is an ideal solution, again, if the infrastructure supports it, and that is having either a corridor or a large room that contains separate large cubicles or smaller rooms that are self-contained and lockable from the inside, containing toilet, hand basin, and sanitary bin, and for use by everybody because that both complies with the requirements of the regulations and also balances the interests and the needs of both trans people and others that are using the facilities.

So, moving on from toilets, we’ve got another very topical area, which is changing rooms and in respect of the requirement to provide changing rooms, it’s worth noting that that comes again from the Workplace Health, Safety and Welfare regulations 1992. And under those regulations, it is a requirement for employers to provide changing facilities if staff are required to wear special clothing for the purpose of work and if the person cannot, for reasons of health or propriety, be expected to change in another room.

So, if as an employer you don’t require your staff to wear specific uniform or type of clothing, then there’s no requirement for you to provide changing rooms and changing facilities. However, for employers that do require that, whether that be nurses in scrubs, firefighters in uniform, or particular clothing for retail staff, that is something that you need to bear in mind for those purposes. So, the Equality Act doesn’t expressly govern the position with the provision of changing rooms, but under the Workplace Regulations, if you do provide a changing room, it needs to be suitable for purpose, and if it’s for reasons of propriety, it is an expectation.

So, there’s no authority on what the meaning of propriety is, but it’s fair to assume that if a member of staff has to strip down to their underwear, for example, in order to get changed into uniform or special clothing, then that would be covered. And where it wouldn’t be proper to change elsewhere, for example, in a staff room or other rooms used by people of the other sex, that would be envisaged as well.

If you have unisex changing facilities, we expect that it might be difficult to establish a defence to a claim of indirect sex discrimination because it would likely be difficult to argue that you can’t provide separate single sex changing rooms or some other rooms that are repurposed for the purposes of changing on the work premises. However, we do anticipate that any claims for indirect gender reassignment discrimination would be likely to be capable of being defended on grounds of objective justification. That is, that there is a legitimate aim that the employer has, which is complying with the Workplace Health and Safety Regulations, and that the way that you are doing that is a proportionate means of achieving that legitimate aim.

So finally, I’m gonna come on to single sex and separate sex services. So, this is dealing with the obligations and rights in respect of those who provide services. So, we are not looking specifically at employers and their obligations to staff in the workplace. We are looking at service providers, which obviously a lot of employers will also be service providers, but we are looking at it from that angle because of course, the Equality Act applies to the provision of services as well as to employment.

So, for example, under Section 29 of the Equality Act, it is specifically prohibited that somebody is discriminated against on the grounds of a protected characteristic in the way that they have access to services or being denied access to services, and it goes on to prohibit harassment and victimisation. The implication of the Supreme Court’s ruling in theory is that single sex services should only be accessible by those who have the biological sex of that service. But there are defences under the Equality Act, under Schedule Three, that give an employer a defence to any claims that might arise from that situation, and there are various gateways through which an employer could bring that defence.

So, looking at Schedule Three, in relation to services and public functions, paragraph 26 deals with separate services for the sexes and effectively says that if an employer provides separate services, divided by sex for service users, then that is not discriminatory and then not in contravention of the Equality Act, if what it’s doing is a proportionate means of achieving a legitimate aim.

Similarly, paragraph 27 of Schedule Three deals with single sex rather than separate sex services. So that is a service that is only provided to one sex and not the other. And again, it says that it is a defence that is available to an employer if it is providing a single sex service, and doing so is a proportionate means of achieving a legitimate aim.

And paragraph 28 of Schedule Three specifically deals with gender reassignment and basically says that it’s not gender reassignment discrimination to provide single sex services, again, if it’s a proportionate means of achieving legitimate aim.

So, for each of those defences under schedule three, the question is really about whether an employer has a legitimate aim in having separate or single sex services and whether in doing so, it is trying to achieve that legitimate aim proportionately. And if an employer can make that out, then it will have a defence to any claims that might be brought. And the sorts of legitimate aims an employer might rely on could include such factors as safety, autonomy, privacy, dignity and religious observations amongst many others. And the sorts of single sex services or separate sex services that commonly we see are, are those that are, for example, rape crisis services, hospital wards, changing rooms are also included as well.

Just finally on single sex services. You’ll be aware that the Equality and Human Rights Commission has provided interim guidance following the Supreme Court’s judgment, and it has provided some very interesting guidance, specifically in relation to single sex services. As part of the guidance, what the Equality and Human Rights Commission has said is that 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. That’s obviously incongruous with what the judgment in the Supreme Court says overall, and everything I’ve said up until now, but that guidance seems to be based on a particular paragraph of the Supreme Court’s judgment in the For Women’s Scotland case.

That paragraph essentially says women living in the male gender could also be excluded, under paragraph 28, without this amounting to gender reassignment discrimination. 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 women only service being provided.

So basically the guidance that the Equality and Human Rights Commission is based on what the Supreme Court judgment said there, which is in essence, if a trans woman looks like a woman, has been living as a woman for years, et cetera, and vice versa, then it may be a defence that it would cause offence and objection to expect that trans woman to use the men’s facilities and for men to share the facilities with that trans woman. We are expecting finalised guidance from the Equality and Human Rights Commission following the closure of the consultation period on the 25th June, and the report that will arise from that, but probably not until later in the summer, probably in August we would expect at this rate.

So, finally turning to what the next steps are and what employers should be doing on a practical level whilst waiting for that final guidance from the Equality in Human Rights Commission. There are a number of things that employers can be doing.

First of all, undertaking risk assessments by analysing their workforce, understanding the needs and existing facilities available to the workforce, and identifying where issues may arise. It may be helpful to issue a corporate expectation statement about the impact of the Supreme Court judgment and how that will impact on the organisation’s intentions and its availability of facilities to its staff.

It will be helpful to manage expectations by providing training to managers on the legal position and also providing guidance to staff in general on how to raise any concerns and to managers on how to respond to those concerns. And it would also be helpful to be reviewing your existing policies and updating them if necessary to ensure compliance with the legal position.

You might be looking at redesigning of existing facilities, for example, whether you have the infrastructure or can put in place measures to provide the infrastructure to provide lockable units instead of single sex toilets. Or you might be looking to repurpose disabled toilets in the way that I suggested before.

I think on a final note, it’s probably important to also say that it’s not worth creating problems where they don’t exist. If your staff members or certain staff members within your workforce have been living as trans for years, nobody knows that they are trans, then what you don’t want to be doing now is telling them to start using the toilets that align with their biological sex and not their required sex. Particularly those that have gender recognition certificates in place.

It’s really important to know that those that have gender recognition certificates under the Gender Recognition Act are afforded certain protection and it is a criminal offense under the Gender Recognition Act to disclose certain information about either a person’s application for a gender recognition certificate or the fact that they have transitioned without their consent. So going about making inquiries and in inadvertently disclosing the fact of a trans person’s gender reassignment through those inquiries might put you in a significantly more difficult position than you would’ve been in by simply allowing them to continue to use the toilets that they already do.

So I think those, in summary, are my suggestions on how you might want to be considering taking steps in light of the Supreme Court’s decision. So, if you have any questions arising from today’s podcast, then feel free to get in touch with us. Thank you.