The Scottish Government has offered to meet us 

We have received a letter from the Scottish Government’s Director of People, Dr Nicola Richards, offering a meeting. 

Richards says the Scottish Government accepts the Supreme Court ruling and has put its Trans and Non Binary Equality and Inclusion policy under “active review”.

This policy says trans staff (including but not limited to “trans men, trans women, non-binary, genderfluid or genderqueer colleagues”) can choose which single-sex facilities to use. 

It allows any man whose “gender expression does not fully correspond with the sex he was born” (perhaps he wears nail polish or just feels a bit fluid) to use women’s toilets, showers and changing rooms on the Scottish Government’s estate. 

The Scottish Government’s policy is clearly unlawful, and exposes the Scottish Government’s female staff to harassment.

The Workplace (Health, Safety and Welfare) Regulations 1992 place a duty on employers to provide “suitable and sufficient sanitary conveniences” as separate rooms for men and women (except where and so far as each convenience is in a separate room, the door of which is capable of being secured from inside). 

The Equality and Human Rights Commission has said that duty-bearers should not delay in acting following the Supreme Court’s clarification of the meaning of sex in law. Despite this, the Scottish Government has written to us saying that it does not agree that it is “appropriate or straightforward to take immediate steps” to bring its policies in line with the law.

Extraordinarily, one of the reasons it gives for not acting swiftly is that the Good Law Project (GLP) is bringing a legal challenge against the EHRC for its interpretation of the workplace regulations.

GLP argues in its grounds of claim that the Supreme Court did not mention toilets.

This is strange, because the Supreme Court judgment notes (at paragraph 52) that the Sex Discrimination Act 1975 provided for separate-sex “sanitary facilities” (in other words, toilets). 

“It recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women.”

The Supreme Court goes on to say (at paragraph 211) that the provisions in the Equality Act that enable single-sex and separate-sex services “are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group” and to include another example of single-sex services provided for everyday privacy and dignity, namely changing rooms. 

At paragraph 224 it says that if “women” in the Equality Act included men with gender-recognition certificates (GRCs): 

“It would undermine the very considerations of privacy and decency between the sexes both in the availability of communal sleeping accommodation and in the use of sanitary facilities which the legislation plainly intended to provide for.”

The Workplace Regulations also don’t refer to “toilets”. They call them “sanitary conveniences”.

Whatever you call toilets, it is clear that providing them separately for men and women is lawful under the Equality Act, and generally expected in workplaces unless what is provided is fully enclosed unisex toilets like the one in your home. 

GLP goes on to argue that in the 1992 regulations the words “man” and “woman” are not defined, and should be interpreted as relating to “certificated sex”.

The Supreme Court explored the “certificated sex” meaning at length, concluding that it resulted in incoherence in relation to separate-sex services. As the court noted, having a GRC does not relate to appearance or physiology, and “trans women” with and without a GRC “are often visually or outwardly indistinguishable” from each other (and from other men). Someone who might reasonably object to the presence of a person of the opposite sex would be just as likely to object to a person of the opposite sex who holds a (confidential) certificate.

Legal academic Michael Foran has discussed GLP’s arguments in detail. It is worth noting that GLP says nothing about allowing “non-binary, genderfluid or genderqueer” men into women’s toilets, which is the Scottish Government’s policy. 

It is extraordinary that the Scottish Government, having lost in the Supreme Court, is now using GLP’s challenge as a justification for not acting swiftly to bring its own policies into line with the law. 

We have accepted the offer of a meeting with Richards in the hope of gaining clarity about how the Scottish Government is currently managing its workplace facilities, and when it intends to bring them into line with the law.