Following a recent High Court decision, we set out the position regarding trans access to single-sex facilities and the practical options for employers.
This article focuses on employment only, and the position regarding service provision is different. We expect that the updated EHRC Code for Service Providers will address the position for service providers once published.
Summary
The High Court has confirmed that employers must provide their single-sex workplace toilets and changing room facilities on a biological basis in order to comply with health and safety requirements, but that trans staff should not be left without adequate, non-discriminatory facilities. This may potentially include employers offering additional, trans-inclusive single-sex facilities (although this is untested). Employers may also provide gender-neutral facilities, provided they meet health and safety requirements.
Background
Following the Supreme Court decision in For Women Scotland earlier this year (see our article here), organisations have keenly awaited further guidance on how to approach trans employees’ access to single-sex spaces. While it was previously widely understood that trans people should be able to access single-sex spaces aligned to their gender identity, the Supreme Court’s decision created uncertainty when it held that “sex” has a biological meaning for the purposes of the Equality Act 2010.
One reason for this lack of certainty was that the Equality Act does not explicitly govern single-sex facilities in the workplace. These are covered by the Workplace (Health, Safety and Welfare) Regulations 1992, a separate piece of legislation which makes no comment on the meaning of “men” and “women”.
The Equality and Human Rights Commission issued an “interim update” shortly after the For Women Scotland judgment which addressed single-sex facilities in employment, but this was then amended and subsequently removed entirely from its website. The government is currently considering a revised EHRC Code of Practice for Service Providers, although there is no timeframe on when we expect this and in any event it will not cover employment. There have been indications that the Code of Practice for Employers will also be reviewed, although no consultation on any proposed changes has yet been launched.
The EHRC’s interim update essentially said that trans people should be prohibited from using single-sex facilities aligned to their gender identity in the workplace. This formed the basis of the High Court challenge brought by the Good Law Project and others. The claimants’ arguments included that the interim update misrepresented the position in the Equality Act.
Before the High Court decision was handed down, we had started to see Employment Tribunal cases addressing how employers should approach this thorny question. This article touches briefly on other recent decisions before diving into the High Court judgment, which is the leading authority as things stand.
A word of caution – this is a rapidly-developing area where we have seen significant changes in the past year. Of the decisions we mention here, almost all are under appeal. While this article is a snapshot of how things stand, we continue to keep a close eye on developments and anticipate that this may not be the final position.
Recent case law prior to the High Court decision
Prior to the High Court’s decision, we saw a flurry of Employment Tribunal decisions on the topic of objections raised about trans employees’ access to single-sex facilities in the workplace. Peggie, Kelly and Hutchison all considered similar (but slightly different) questions, and came to some strikingly different conclusions about how employers should treat single-sex spaces within workplaces. For example, while Peggie and Kelly concluded that employers do not need to guarantee that single-sex women’s spaces are reserved for biological (i.e. cis) women, Hutchison reached the opposite conclusion. This lack of coherence was indicative of the complexity and uncertainty employers faced.
As an aside, none of the cases found that any of the trans women in question had personally harassed others by being present in a single-sex women’s space.
The recent High Court decision, which post-dates these Employment Tribunal judgments, is now the leading authority on the topic, and we would therefore expect future Tribunal decisions to follow it.
The High Court’s decision
The High Court rejected the claimants’ arguments that the EHRC’s interim update misrepresented the Equality Act. The High Court concluded that “men” and “women” in the Health & Safety Regulations should be interpreted in line with biological sex. This is the case even if an employee has a Gender Recognition Certificate.
This means that single-sex facilities which employers provide to comply with the Health & Safety Regulations should be operated on the basis of biological sex, i.e. trans people should not use the facilities aligned to their gender identity, as this will mean the facilities are no longer single-sex. This applies to workplace toilets and legally-required changing rooms (where employees are required to wear uniforms/special clothing and need facilities to get changed).
The High Court, however, observed that the requirements in the Health & Safety Regulations are a floor, not a ceiling. Once they meet that floor, employers can make additional provision to address the needs of their workforces. It may be possible to offer additional single-sex facilities in a trans-inclusive way without them becoming gender-neutral, i.e. employers may be able to offer some trans-inclusive women’s toilets which are accessible to trans women but not to cis men. That said, the High Court did not explicitly address whether or not this would be compliant with the Health & Safety Regulations. The practical and health and safety questions around this therefore remain untested.
It is also very likely to be sensible for employers to offer at least some gender-neutral facilities, in addition to any single-sex facilities, provided these are also compliant with the requirements under the Health & Safety Regulations. While these may be accessible facilities, thought should be given to whether this is an adequate and non-discriminatory approach based on the facilities an employer has.
The High Court found that trans people should not be forced to use the facilities of their biological sex and made clear that employers must ensure their toilet provision is not discriminatory against trans people on the basis of gender reassignment. Each employer will need to consider how best to comply with that, based on its own premises.
Attempting to offer guidance to those facing this challenge, the High Court said: “Those who provide facilities whether to the public or to their employees should comply with the law but also be guided by common sense and benevolence rather than allow themselves to be blinkered by unyielding ideologies”.
We set out the broad practical options employers are likely to have below, along with what considerations should be borne in mind.
Practical options regarding workplace toilets
| Biological single-sex provision only | This may be compliant with the Health & Safety Regulations, but is likely to create gender reassignment discrimination risk. The High Court is clear that trans people should not have to use the toilets of their biological sex. |
| Biological single-sex provision plus gender-neutral accessible toilet(s) | This is the practical reality for many employers, and the High Court judgment suggests this is a viable option. We would encourage employers to consider the potential impact of this approach on colleagues with disabilities, who may find that their provision is no longer sufficient, as well as the potential risk of outing trans colleagues. Both of these carry a discrimination risk. Additionally, the accessible toilet should be clearly labelled as the gender-neutral option (in addition to the accessible option). |
| Biological single-sex provision plus gender-neutral provision (beyond accessible toilet(s)) | Where facilities permit, we think this is a sensible option. This reduces the risk of outing trans colleagues and also reduces the potential impact on colleagues with disabilities. The practical limitation of this option is that the gender-neutral provision would need to comply with the more stringent requirements under the Health & Safety Regulations. |
| Biological single-sex provision plus additional trans-inclusive single-sex provision | The High Court suggests this is a viable option, although it does not expressly address whether this would be compliant with the Health & Safety Regulations. This point is untested. The High Court considers that the additional trans-inclusive provision would not become fully unisex, i.e. welcoming trans women to use the additional trans-inclusive women’s toilets would not mean that cis men could also use them. This of course requires employers to have generous provision of toilets, to exceed the Health & Safety Regulations’ minimum requirements. |
| Entirely gender-neutral provision | This is compliant with the Health & Safety Regulations as long as the relevant requirements are met. However, employers should consider whether this might lead to indirect sex discrimination. |
Which of these is the best option will depend on an employer’s building and its workforce. What we know from the case law is that an employer should give careful consideration to the approach it takes, with regard to the rights of everyone impacted (rather than focusing just on any single group).
We note that none of the case law indicates that employers should proactively police bathroom access, and instead suggests that designating facilities as “men’s” or “women’s” will be sufficient. For many workplaces, this is not a contentious issue. If a concern is raised, however, cases like Peggie show that employers should take it seriously, consider the rights of the individual complaining (as well as the rights of others), and take appropriate action.
Practical options regarding legally-required changing facilities
The Health & Safety Regulations require “suitable and sufficient” changing facilities to be provided where employees need to wear uniforms/special clothing and need facilities to get changed. Employers must provide single-sex facilities, or facilities which are used separately by men and women. As with toilets, the High Court concluded that “single-sex” means restricted by biological sex.
We consider it more likely that an employer who operates a single-sex changing facility in a trans-inclusive way might face a successful claim, given the heightened sensitivities in spaces where staff are getting undressed. This was the subject of Peggie and the Tribunal’s starting point in that case was that a trans-inclusive changing room policy was not necessarily unlawful. However, the Tribunal did find there had been harassment when the policy continued without suitable alternatives after a complaint, this case is under appeal, and the High Court decision suggests that this approach was flawed.
On the positive side, it is likely to be more straightforward for an employer to change the layout of its changing facilities than its toilets, due to both structural issues like plumbing and the less prescriptive requirements under the Health & Safety Regulations. It may therefore be easier for an employer to offer some gender-neutral changing facilities, or to provide entirely single-occupancy changing cubicles to reduce the risk of gender reassignment discrimination claims.
Unlike toilets, employers also have the option to provide separate use of changing rooms, rather than separate changing rooms, which gives additional flexibility. For example, one option might be to offer a changing room on a “one-in-one-out” basis (which is how many employers approached the use of facilities immediately following Covid).
Where this issue comes into play, employers may need to consider whether they can adapt their existing changing facilities (or the way they are operated) to better suit the needs of their workforce.
Top tips for employers
While this topic remains fraught with uncertainty and highly fact-specific, we’ve set out what we currently know and our recommendations for employers approaching this issue.
- We now know that having a trans-inclusive policy regarding single-sex workplace facilities carries clear legal risk. The High Court judgment holds that compliance with health and safety legislation must include providing sufficient biological single-sex toilets, other than where all facilities are compliantly gender-neutral.
- This does not mean that trans people should be required to use the toilets that correspond to their biological sex. The High Court appears to suggest that employers may (and perhaps should) consider whether they can provide additional trans-inclusive single-sex facilities. However, whether this is compliant is unclear and as yet untested.
- Employers can also provide additional (or exclusively) gender-neutral toilets, provided they meet the requirements in the Health & Safety Regulations. In fact, employers who already have generous (or exclusive) unisex facilities may well be in the strongest position. They should, however, consider whether this might amount to indirect sex discrimination against women in their particular circumstances, or whether this can be objectively justified.
- In any event, toilet provision must not discriminate against trans people on the basis of gender reassignment. Employers may also wish to be mindful of inclusivity towards non-binary employees when considering their provision, in particular gender-neutral facilities.
- Employers should consider the provision made for any employees with disabilities. Simply rebadging an accessible toilet (as suggested by the High Court) may have an impact on the number of employees using that facility, and careful thought should be given to whether this impacts the adequacy of those facilities for employees with disabilities (as well as others).
- We strongly recommend that employers carry out an audit of their facilities, so that they understand the art of the possible in each of their locations.
- In many cases, facilities will not be fully within employers’ control. Employers may also wish to contact their building providers to ask to be involved in any decisions about facilities they are responsible for. Employers are likely to want to have a say on this sensitive topic, including for example if providers propose to change signage.
- Carrying out an impact assessment is a sensible step to ensure you have considered the needs of your entire workforce, and the impact that any changes might have on them. This includes those covered by protected characteristics such as sex, gender reassignment, disability, and religion or philosophical belief.
- Employers may also want to think about seeking input from impacted groups. Employee networks are a good place to start, for example inviting your network leads to a conversation so they can reflect the views of the communities they represent within your organisation.
A clear takeaway from the case law we have to date is that employers should consider the needs of all employees, not just one group. Employers will be in the best position if they can show that they have accounted for, and where possible accommodated, the needs of their workforce at large and their duty to avoid discrimination based on any protected characteristic.
As employers continue to seek to provide workplaces where everyone feels comfortable to be themselves and to work free from harassment, the tensions in this area show no sign of abating.