Employers are required by regulation 20 of the Workplace (Health, Safety and Welfare) Regulations 1992 to provide separate toilets for men and women, unless their facilities are single-user fully enclosed rooms that are lockable from the inside. If you let any man (however he may identify) use the ladies’, you’ve made it mixed, so you’ll be in breach of the regulations. It’s not sex discrimination to obey the law in this respect, so long as your men’s and women’s toilets are of an equal standard, so you don’t need a specific exception from the Equality Act to give you permission to do what you have to do under the Regulations.
It’s often suggested that refusing to let a “trans woman” use women’s facilities is gender reassignment discrimination because a woman without the protected characteristic of gender reassignment wouldn’t be refused access. This is a misunderstanding of the law.
To understand the error, you have to be able to realise that under the Equality Act 2010 “trans women” is not a subcategory of women, but a subcategory of men. A man who asserts a female identity remains legally as well as biologically a man until and unless he gets a gender-recognition certificate. So the correct comparator to test whether a trans-identifying man has suffered discrimination because of gender reassignment is a man without that protected characteristic: see R (Green) v Secretary of State for Justice. A man without the protected characteristic of gender reassignment would equally be refused access to the ladies’, so it’s not his PC of gender reassignment that is the reason for the treatment complained of, but his sex.
A gender-recognition certificate (‘GRC’) complicates matters. There are no statutory words excluding the 1992 regulations from the scope of the Gender Recognition Act, so until and unless Lady Haldane’s judgment in FWS2 is overturned on appeal, we have to assume that a man with a GRC declaring him to be a woman counts as female for the purposes of those regulations.
Section 22 of the GRA makes it a criminal offence for someone who has acquired knowledge of a GRC-holder’s GRC status in an official capacity to disclose that information to anyone else unless one of a list of narrowly defined conditions applies.
This creates a bind for an employer faced with a male employee who identifies a woman and wants to use shared facilities provided for women. They will have to choose between three possibilities:
- refuse to let him use the ladies’
- let him use the ladies’
- ask him if he has a GRC, and only let him use the ladies’ if he can produce one.
There are risks and difficulties whichever course you take.
Refuse to let him use the ladies’
If you refuse to let a trans-identifying man use the ladies’, he may sue you for harassment or discrimination under the Equality Act 2010. Subject again to the potential complications caused by a GRC (discussed below), he ought to fail. That’s because he’s being excluded from the ladies’ not because of his protected characteristic of gender reassignment, but because of his sex; and excluding men from the ladies’ is not sex discrimination, as explained above. As for harassment, even if he can persuade a tribunal that excluding him has the effect of creating an intimidating, hostile and so on environment for him, he’ll still have to get past the tribunal’s obligation to consider whether it is reasonable for it to have that effect; and the “other circumstances of the case”. Those other circumstances will include the fact that his female colleagues have the right – backed explicitly by the 1992 regulations, and implicitly by the harassment provisions of the Equality Act – not to meet a biological male in the ladies’.
Let him use the ladies’
If you let a trans-identifying man use the ladies’, your female staff may object. They may not like having to rustle sanitary protection packaging in the hearing of a male colleague, or stand beside him to wash their hands (or even underwear) after dealing with a menstrual flood, or meet a male colleague in a state of undress in a shared changing area. Some may not want to brush their hair, touch up their makeup or adjust their hair-coverings in the presence of a biological male. You are probably in breach of the 1992 regulations (subject to the effect of a GRC, discussed below), and on top of that your policy may amount to indirect sex, race, or religion and belief discrimination. If it is a breach of the regulations, it’s hard to see how you’re going to justify it as a “proportionate means of achieving a legitimate aim”.
And you are at risk of facing harassment claims on all sides, either because your female employees complain that having a biological man in the ladies is an intimidating, hostile etc environment, or else because they say things to or about him while he is there which create an intimidating, hostile and so on environment for him. If the workforce is large they may be completely surprised by the sight or sound of a biologically male stranger in the ladies, and may not realise that they are supposed to pretend to believe that he is a woman.
Let him use the ladies’ if he has a GRC
The short list of lawful reasons to disclose that a person has a GRC does not include “for the purpose of managing the workplace” or “for the purpose of protecting the privacy and dignity of your female staff”, or anything of that kind. So if you ask your male employee who identifies as a woman whether he has a GRC to “prove” it, and he is able to produce one, you can’t tell anyone else. And if it is known that your policy is only to let biological males use the ladies’ if they have a GRC, letting this particular man use the ladies’ will be a bit of a giveaway. Even if you adopt that policy but keep it a secret, what are you going to say when his female colleagues complain? And how practical is it going to be anyway to keep it secret? Suppose you have two trans-identifying male employees, Gloria, who has a GRC, and Nancy, who doesn’t. If you let Gloria use the ladies’ but not Nancy, what are people going to think?
Besides, even if you can get around the problem of implicit disclosure (for example, by getting Gloria’s consent to disclose), it’s far from clear that following this policy is going to protect you from harassment claims from your female staff. A GRC doesn’t give a man a right to access female-only spaces; it merely deems him to be female in those circumstances in which the law attaches consequences to whether someone is male or female. A GRC doesn’t in itself confer those kinds of rights at all: it can only confer rights contingent on being a woman through the operation of other legislation.
Gloria might argue that not letting him use the ladies’ would be direct discrimination on grounds of gender reassignment. The law deems him to be a woman, so the reason he’s not admitted to the ladies’ is that he’s a woman by operation of law, not biology. The employer might try to rely on schedule 3 to the Equality Act, which permits discrimination on grounds of sex and gender reassignment in relation to services; but that defence is likely to fail on the grounds that this is workplace discrimination contrary to part 5 of the Equality Act, to which schedule 3 doesn’t apply. There are no comparable exceptions in part 5.
There isn’t an obvious defence to Gloria’s discrimination claim that the employer did what it had to do to avoid discrimination or harassment claims, or both, from its female staff. That’s because the general “statutory authority” defence that was present in all the pre-Equality Act discrimination legislation has made its way into the Equality Act only in fragmented and incomplete form. In particular, there is no general statutory authority exception covering part 5 of the Act. Absent an express exception, direct discrimination is always unlawful.
I want to pause here and make a bit of a fuss about how bad a glitch in the legislation this is. On the face of things, employers are left in a bind in which they may be liable under the same Act, or under the Equality Act and another piece of legislation respectively, for doing something if they do it, and for not doing it, if they don’t.
If this conundrum ever comes to court, no doubt both sides will rely on their Convention rights: the trans-identifying man relying on article 8, and his female colleagues relying on articles 3 and 8. I honestly can’t predict how a court would resolve it .
One option is to provide fully separate, enclosed single-occupancy unisex toilets with integral washing facilities, and the additional cleaning that the lack of urinals will inevitably necessitate. The problem with that solution is that it’s all very well in smart offices with a fairly light total footfall; it may be simply impracticable in a warehouse or factory where facilities need to cater for hundreds of staff, often in a hurry.
And in any case, most people continue to prefer fully separate facilities.
For most employers, most of the time, following the guidance we have set out in Toilets Matter: a simple guide to toilets and the law will be the right course: have separate male and female facilities and offer a unisex option. Have a clear policy which makes explicit that individuals are not permitted to use opposite-sex facilities, even if they have a GRC.
But the interaction between the Gender Recognition Act and the Equality Act does create litigation risk for an employer faced with a trans-identifying member of staff in possession of a GRC – whatever course it chooses.
 I can’t in the time I’m able to devote to this short article, anyway. I’d be delighted to spend some more time – and your money – thinking harder about it, if instructed.
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Article written by guest author Naomi Cunningham of Outer Temple.