During the case of Good Law Project v Equality and Human Rights Commission, Sex Matters CEO Maya Forstater made a reference in her evidence to British Standard BS 6465 on toilets, which says in relation to public toilets:

“Many men and women seek privacy, and many women and children feel safer when using single-sex facilities.”

Mr Justice Swift picked this up and asked for a written briefing from the parties on the British Standard and whether it comprises any form of legally enforceable obligation.

The British Standards Institution (BSI) is an independent body formed in 1901 under a royal charter. It provides reliably uncontroversial and detailed standards for everything from the width of pipes to the performance of horse-riding helmets. 

The British Standard on “sanitary installations” is the reason why toilets in public places tend to have a familiar, standardised layout. 

The British Standards provide recommendations to help duty bearers meet a range of legal obligations which relate both to building work and to the management and usage of services. There are somewhat different regulations across the UK nations, for workplaces in general and for different sectors such as education and healthcare. But the basic requirements are consistent. 

You don’t need to be a lawyer or have a degree in sociology to decide how many of which type of toilets you need in a building, or who can use which ones.

The expectation that male and female facilities should be separate is woven through the standards, and they have a long history. The current version was published in 2006, but previous versions go back to 1952.

BS 6465: Sanitary installations

BS 6465 tells you how many toilets you need in any building to be confident of meeting regulations. It gives detailed recommendations on the design of facilities, including lighting, ventilation, how the locks work, the size of the gaps under the doors and what the signage says.

It provides for male and female toilets (which can have gaps above and below the cubicles and may contain urinals for men) and unisex toilets, which are fully enclosed rooms that can be used by either sex and are intended for one person at a time. 

It gives recommendations such as:

“All toilets and toilet facilities… should be clearly marked with signs at the entrance of the toilets.”

“WC compartments and urinals should not be visible from outside the toilets, either directly or by reflective surfaces such as mirrors.” 

“Provisions for women and for men should be assessed and calculated separately.”

These make clear that the reason for providing men’s and women’s toilets are to meet the different needs of men and women, including privacy from members of the opposite sex. 

It advises providers on how to work out how many toilets are needed; for example: 

“In the absence of more reliable information, it should be assumed that the audience in assembly buildings will be 50% male and 50% female, and in theatres and concert halls, 40% male and 60% female. 

“In sports stadiums, provision should be calculated on the normal number of male/female spectators.”

The standard also refers to BS 8501, the standard for graphical symbols and signs, which gives information and recommendations on public-information symbols (signs) and their use. 

The standard sets out the number of toilets (and urinals for men) needed in different types of venue:

Buildings that meet BS 6465 will have a unisex toilet

The standard provides that in buildings other than private dwellings, toilet provision for disabled people should be as follows: 

a) Where there is only one toilet in a building, it should be an enlarged wheelchair-accessible unisex type. 

b) At least one wheelchair-accessible unisex toilet should be provided at each location where sanitary facilities are provided for the use of staff, customers, and visitors to a building.

In larger facilities it also recommends disabled facilities in the women’s and men’s toilets. This reflects requirements in the building codes. Older or smaller buildings may not have this range of facilities, but most larger venues will. 

The standard doesn’t recommend all unisex toilets. Part four of BS 6465 is the code of conduct for public toilets. It says: 

“Many men and women seek privacy, and many women and children feel safer when using single-sex facilities.”

and recommends that:

“Separate facilities for men and for women should be provided in preference to unisex facilities, wherever possible.”

Who regulates toilets? 

Toilets come under regulation by local authorities (licensed venues, most offices, and retail and light industrial workplaces) or the Health and Safety Executive (government buildings, building sites, oil rigs, farms and factories), as well as building regulations. They are also affected by sector regulations, for example in educational and healthcare facilities. 

Toilet facilities are designed to ensure dignity and privacy. For example, the Care Quality Commission in England says:

“People using services should not have to share sleeping accommodation with others of the opposite sex, and should have access to segregated bathroom and toilet facilities without passing through opposite-sex areas to reach their own facilities. Where appropriate, such as in mental health units, women should have access to women-only day spaces.”

Local authorities are responsible for licensing venues that sell alcohol or provide regulated entertainment, such as theatres, cinemas, and music and sports venues. Under the Licensing Act 2003 they must carry out this function with a view to preventing crime, disorder and public nuisance, promoting public safety and protecting children from harm. Applicants for licences typically have to provide plans that contain details of their toilets. 

Local authorities also have powers under the Local Government (Miscellaneous Provisions) Act 1976 to serve notices on relevant business, such as those serving food or beverages, requiring them to provide “specified, sanitary appliances of such kinds and numbers as are so specified”. They typically adopt policies based on the British Standard for working out what number of facilities are needed. 

All of this is straightforward. It is the reason why the claim promoted by trans lobby groups that businesses are panicking about the cost and difficulty of complying with the For Women Scotland judgment is simply not credible. 

The only organisations that are struggling to comply with the Equality Act when it comes to toilets are those that don’t meet BS 6465 already (such as those that have tried to make everything gender-neutral, without considering the needs of women) and those that have made the unfulfillable promise to trans lobby groups that they will never expect staff or customers who don’t wish to use the facilities provided for their sex to use unisex facilities.

Everyone else can keep calm and carry on!

The post Happy World Toilet Day! appeared first on Sex Matters.

The Supreme Court judgment in For Women Scotland v The Scottish Ministers was crystal clear that any space designated single-sex is solely for the use of people of that sex. This is because in order for a space (or service) to be lawfully provided for one sex only, it must satisfy one of several criteria called the “single-sex exceptions” in the Equality Act. Roughly speaking, these criteria are various situations in which including people of the other sex would be inappropriate. If an employer designates a space as “single sex” and then states in its policies that certain people of the other sex can enter, then the space automatically fails to meet these criteria. 

The Supreme Court judgment therefore means that all employers need to make clear in their policies that whenever a space is marked as being for one sex or the other, it is not for use by members of the opposite sex, regardless of claimed identity, certification or lifestyle. 

The widely promoted idea that people may choose the facilities that suit their gender identity, or that they feel comfortable with, is legally wrong. Facilities are either for one sex only or for both sexes, with no exceptions. There can be no excuse for an employer to let people use the facilities marked for the other sex. This deprives everyone else of the single-sex provision they are entitled to under workplace regulations. 

The signs on the doors of workplace toilets and other facilities are health and safety signs. They should no more be ignored than signs that say not to block the fire exit or warnings about hazardous materials. 

Whose job is it to enforce this?

Your employer

Your employer is responsible for complying with the law. No individual employee should have to request that it do so, nor should anyone have to challenge someone using the wrong facilities. 

It is not enough for employers to provide men’s and women’s toilets. They must also ensure that the rules for use are clear and complied with by everyone.

The Health and Safety Executive is the regulator that oversees the 1992 Workplace Regulations. In response to a letter from Sex Matters, the chief executive of the HSE wrote:

“For legislation that requires an employer to provide an item or facility for their workers, HSE would consider not just whether it is actually present, but also whether an employer takes steps to ensure that it is used as they intend. For provision of men’s and women’s toilet facilities for workers, we would consider the availability of separate facilities and whether or not the employer is following a clear policy and decision-making process as to their use.”

This is unambiguous: employers have a responsibility to communicate and enforce their policies and ensure that men are not using the women’s facilities (and vice versa).

If there are men using the women’s toilets or if the policy is that anyone can use whichever facilities they prefer, or if traditional cubicled communal spaces are relabelled “unisex”, you should complain.

You could report the problem to your supervisor or your immediate manager. Employers are required to display a health and safety at work poster in the workplace that includes details of the health and safety representative. Explain the issue and suggest a solution (there should be a clear policy that male and female facilities are provided on the basis of biological sex). 

If your concern is not taken seriously, you can escalate to either your head of health and safety or human resources. Explain the same concerns that you previously expressed and why you believe your concerns have not been acted upon.

You are protected by law from suffering a detriment if you raise health and safety concerns with your employer or the enforcing authority. In fact, under the Management of Health and Safety at Work Regulations 1999, employees in Britain have a responsibility to report any matter which a person with their training and instruction would “reasonably consider represented a shortcoming in the employer’s protection arrangements for health and safety”.

Use our template email below and attach our workplace toilets factsheet to make this point to your employer. 

Your union

If you are in a trade union and you are concerned that your employer does not take the issue seriously, you can report the issue to your trade union safety representative. 

Their role is to check and follow up on management’s actions or lack of action on health, safety and environmental issues in the workplace. This includes the regulations on toilets, changing and washing facilities. Trade-union safety representatives can also report the issue to the HSE.

The regulator

If your employer does not respond by adopting or confirming that it has a clear sex-based policy, and that it will enforce that policy, you can make a report to the regulator. 

Health and Safety Executive

For health and safety in workplaces, including schools and colleges, hospitals and nursing homes, central and local government premises, factories, farms, building sites, mines and offshore installations, the regulator is the Health and Safety Executive (HSE).  

• In Great Britain, you can report employers in these sectors that do not comply with the 1992 Workplace Regulations to the HSE via its website.
• In Northern Ireland, the regulator is the HSE NI. 

Workplaces not covered by the HSE are covered by a local authority. 

Your local authority

If you work in an office, hospitality, retail, wholesale or distribution, or leisure, the relevant regulator is your local authority – your district council or local unitary authority. 

Search online with the name of your council and “health and safety at work” to find a number or online form for reporting the problem. 

The Equality and Human Rights Commission 

The Equality and Human Rights Commission issued interim guidance to back up the Supreme Court judgment. This states that in workplaces and services that are open to the public:

• “trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• 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
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men.”

Organisations that fail to comply with the Equality Act 2010 can be reported to the EHRC. 

If you report your workplace to the HSE or your local authority and it refuses to act, report both your workplace and the regulator to the EHRC.

What should you do?

Many organisations are reviewing their policies in the light of the Supreme Court judgment. You may want to start by asking what your employer is doing and on what timescale. You can remind them that this is the law. There is no need to wait for guidance: in fact there could be legal risk for those whose policies do not comply right now.

Don’t be tempted to go to the press or talk about your employer on social media. Your aim should be to keep your job and to follow your employer’s established processes for raising issues like this.

Keep a paper trail of your engagement with your employer and with the regulators.

Template email to raise concerns about workplace toilet policies

This template email is designed to help you clearly and confidently raise concerns about workplace toilet policies, whether they are about: 

• the removal of single-sex facilities
• the introduction of “gender-neutral” or unisex toilets
• unclear guidance on who is permitted to use which amenities. 

The sample text can be used to start an informal conversation, adapted to submit a formal grievance, or amended to escalate a previous complaint.

How to use it

• Copy and paste into an email, with the optional sections to suit your own situation.
• Replace placeholders like [manager’s name] and [insert specific issue].
• Attach our Workplace toilets factsheet.
• Send it as an informal query or adapt it to form part of a formal grievance if needed.

Sample text

Attach factsheet

Use this if policies allow self-ID toilet use

Use this if toilets are being refurbished or changed

Use this for disinformation clarification

Use this if you want an informal resolution

Use this if you are raising a formal grievance

Sign-off

Feedback

Let us know if you succeed, or if you hit a brick wall: email TellUs@sex-matters.org.

The post Workplace toilets: know your rights appeared first on Sex Matters.

The Equality Act, and this judgment, are about much more than toilets. But toilets are important. 

So here are some answers to the most common questions. They are mainly common sense. 

Does the Equality Act say that male and female toilets always have to be provided? 

The Equality Act does not say what particular services have to be provided on a separate-sex basis. 

As everyone knows, some locations have only unisex toilets (such as on a train). Others have separate-sex facilities. Some have both. 

Does that mean that single-sex toilets do not have to be provided? 

No. There are several laws specifically about providing toilet facilities, in particular in workplaces and schools. And not providing adequate toilets for both men and women would be sex discrimination. 

The specific laws about toilets make clear that a fully-enclosed room for a single user as you have at home or separate male and female washrooms containing stalls or urinals (or both) are both considered adequate. 

But traditional cubicles in a room that is open to both sexes are not adequate.

What is provided in practice will depend on the size of the building, how busy it is and so on. In some buildings, such as small cafes or offices, and on trains, there may only be space for one toilet which is for everyone. In places like larger offices, pubs, concert venues and football stadiums, it is much cleaner, safer and faster if there are separate facilities. 

The Workplace (Health, Safety and Welfare) Regulations (1992) apply to most employers in England. 

Regulation 20 requires that:

“Suitable and sufficient sanitary conveniences shall be provided at readily accessible places”

and that

“Separate rooms containing conveniences are provided 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.”

Regulation 21 requires washing facilities to be separate in a corresponding way except when the washing is merely of hands, forearms and face.

The Approved Code of Practice (ACOP) on workplace health and safety sets out further guidance. It says that “adequate” means that you have to provide enough toilets and washbasins for those expected to use them and:

“Where possible, separate facilities for men and women, failing that, rooms with lockable doors.” 

The Health and Safety at Work Act 1974 is the primary piece of legislation covering occupational health and safety in Great Britain. Employers must provide a working environment that is:

“So far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.”

The Building Act 1984 applies to owners and occupiers of buildings in England and Wales. 

Section 65 on provision of sanitary conveniences in workplace says:

(1) A building that is used as a workplace shall be provided with —

(a) sufficient and satisfactory accommodation in the way of sanitary conveniences, regard being had to the number of persons employed in, or in attendance at, the building, and

(b) where persons of both sexes are employed or in attendance, sufficient and satisfactory separate accommodation for persons of each sex, unless the local authority are satisfied that in the circumstances of the particular case the provision of such separate accommodation is unnecessary.

Most building work being carried out in England must comply with the Building Regulations 2010. Since October 2024, Schedule 1 has included requirement T1 which says:

(1) Toilet accommodation in buildings other than dwellings—

(a) must consist of—
(i) reasonable provision for male and female single-sex toilets, or
(ii) where space precludes provision of single-sex toilets, universal toilets, and

(b) may consist of universal toilets in addition to single-sex toilets.

(2) In this requirement—

“single-sex toilet” means toilet facilities which—
(a) are intended for the exclusive use of persons of the same sex, and
(b) provide washbasins and hand-drying facilities in—
(i) either the toilet room or cubicle, or
(ii) a separate area intended for use only by persons of that sex.

“universal toilet” means toilet facilities which—
(a) are provided in a fully enclosed room which contains a water-closet and washbasin and hand-drying facilities, and
(b) is intended for individual use by persons of either sex.

Approved document T provides more detailed guidance on the design and layout of the different types of toilet and requires that toilets have clear and appropriate signage.

What does the Equality Act say about toilets? 

Schedule 3 part 7 of the Equality Act allows service providers to offer single-sex and separate-sex services. This includes toilets. At Schedule 3 paragraph 26, it provides several “gateway conditions” that provide the legal basis to allow service providers an exception to sex-discrimination rules – this is what makes it lawful for service providers to provide single-sex services. These include:

“Where the service is provided for, or is likely to be used by, two or more persons at the same time, and the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.”

and

“Where the service is also provided jointly for persons of both sexes, and the service would be insufficiently effective were it only to be provided jointly.”

This recognises that some services might be provided separately, jointly (to both sexes) or with a mixture of options. 

There is no similar exception needed for workplace toilets, since it is a statutory requirement to provide adequate male and female toilets at work. 

What does the Supreme Court ruling mean for toilets? 

The Supreme Court ruling makes it clear that the Equality Act 2010 (and the Sex Discrimination Act 1975 before it) did not set out to make it legally difficult to provide separate-sex toilets. Nor did it give some people the right to use opposite-sex toilets:

“The legislation 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.” (paragraph 52)

The Supreme Court says that the gateway conditions by which the Equality Act provides for separate-sex services “cannot be coherently applied if sex does not carry its biological meaning”.

For example, the condition that a person of one sex might reasonably object to the presence of a person of the opposite sex will NOT be capable of being fulfilled in practice if “woman” is interpreted to include “trans woman”, since trans women are biologically male (and are likely to be perceived as so) and many women will feel as uncomfortable sharing a space with them as they would with any other man. 

While the Supreme Court did not expressly address the question of the Workplace Health and Safety Regulations, the same rationale would clearly apply, and therefore where the regulations refer to men and women, this is a reference to biological sex.

Once you put a sign on the door that the toilet is male or female, then a person of that sex could “reasonably object to the presence of a person of the opposite sex”. 

Signs that say “male” or “female”, “men” or “women”, or use symbols meaning men and women communicate that this is a single-sex service, lawful under the Equality Act, and thus provided on the basis of biological sex. Individuals of the opposite sex should respect those rules, which lawfully exclude them. 

These are common-sense rules. It is well understood, for example, that people will not reasonably object to an infant or young child in an opposite-sex washroom or changing room with their parent. In some places there may be explicit rules about this (such as ”boys under 8 are allowed into the ladies’ changing rooms”), but mainly people are trusted to be sensible, and can be challenged if they are not. 

Employers and service providers that do not provide single-sex toilets or that provide them in an ambiguous way (suggesting they can be used based on gender identity) are exposing themselves to the risk of legal action.

Do service providers have to police their services?

Most toilets are not directly policed (although some, such as in pubs, clubs and entertainment venues, are in places where there are security staff, and others, such as in the workplace, schools and gyms, are in settings where rules can readily be enforced). In general they are self-policed by people following what the signs say about whether a space is for men, women or people of both sexes.

These rules need to be able to be clearly understood by staff and customers, and ought to be able to be communicated simply, both verbally and in instructions, and using the commonly understood symbols.

For example, if someone asks “Are there separate men’s and women’s toilets on the third floor?” the answer might be “Yes” or “No, the toilets there are unisex.” The answer “Yes, there are men’s and women’s toilets (but anyone can choose which ones to use),” is no answer at all. 

Signs and policies that promote ambiguity will mean that the service provider cannot show that they are meeting the gateway conditions for providing a lawful single-sex service. They are exposing themself to legal risk and would not be able to rely on the exceptions in the act if they were sued for sex discrimination. They are also creating a hostile, humiliating and degrading environment, which is likely to be unlawful sex-based harassment (for example, see the Sandie Peggie case). 

Many settings are regulated, for example by Ofsted (schools), HSE (workplaces), CQC (healthcare) and local authorities (some workplaces and entertainment and hospitality venues). Regulators should pay attention to both the adequacy of facilities and the policies by which they are managed. Telling one group of people that you are providing them with single-sex facilities and another group to use whichever facilities they prefer (or that the facilities are provided based on “gender”) is not a safe or responsible practice. 

What toilets should transgender people use? 

If someone doesn’t feel comfortable using separate-sex toilets for their own sex, there is often a single-user unisex option. This is particularly true in large buildings, transport hubs, campuses and so on. 

It is part of the longstanding building code (such as Approved Document G and Approved Document M in England) that suitable sanitary accommodation should be available to everybody, including sanitary accommodation designed for wheelchair users, ambulant disabled people, people of either sex with babies and small children, and people encumbered by luggage. This usually provides enough flexibility that individuals are not faced with the dilemma of there being only two options, neither of which suits them.

What the Supreme Court’s judgment makes clear is that transgender people should not expect or consider it a right to use opposite-sex facilities. Service providers, employers, schools and colleges should not tell them that they can. 

As a result of this judgment, doctors, therapists, charities and advocacy organisations should also not encourage people who identify as transgender to go into opposite-sex facilities. 

Schools, employers and so on should not tell other people that they have to be comfortable sharing single-sex facilities with members of the opposite sex. 

Does this mean that “transmen” should use the ladies’?

This is a longstanding rhetorical argument known as the “transman gotcha”. The argument goes that there are women who identify as men who have taken testosterone for an extended period, and who look and sound convincingly like men (for example with beards, male musculature and a deep voice). 

Is the Supreme Court forcing a person who has taken extreme steps to look like a man to use the ladies’ toilets or saying that they have a right to?

The answer is no. Women who look convincingly like men and who go into the women’s toilets are likely to be just as alarming to women as actual men. They would have to explain themselves, providing personal information that they might not want to share (and that other people might not want to know). 

Therefore it may not be practically possible for some trans-identifying women to use the ladies’ toilets.

The Supreme Court says that it is lawful to exclude them (at paragraph 221):

“Women living in the male gender could also be excluded [from a women’s service] 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 the women-only service being provided.”

But this does not mean they have a right to use the men’s toilets, from which they are excluded by rule. Men also have a right to privacy and dignity. 

This does create a difficulty for a person who has taken extreme steps to modify their body. It will become difficult for them to navigate sex-separated spaces. This is their dilemma. It should be explained to a person seeking to modify their body in this way that they will have to live with this practical difficulty, and that other people have rights. Doctors should stop offering the use of opposite-sex spaces as a test or a goal. 

While individuals may say “You can pee next to me” to their friends, this ideological camaraderie cannot be used to manage public buildings or workplaces.

In most large public buildings where strangers mix, a unisex option is usually available and the practical dilemma does not arise. 

This is not the same as saying that any person who identifies as trans must be excluded from same-sex spaces. For example in a school a girl might say “I identify as a boy”, or a boy might say “I identify as a girl”, or either might say “I am non-binary”. The child’s sex is known to the school and the school continues to have the same responsibility to safeguard that child. The child should not be allowed to use opposite-sex facilities, and should not be excluded from same-sex facilities. The school should keep that child safe and ensure they can continue to access education. 

Could predatory men now use the women’s toilets and claim to be “trans men”?

This is an extremely silly argument. A man who uses the women’s toilets is breaking the rules. This is true whether he claims to be a man or a woman (or a woman who identifies as a man).

The idea that a man in a dress and a wig who wants to use women’s spaces and says he is a woman should be trusted, but a man in jeans and short hair who says he is a woman is definitely up to no good, shows just how far these arguments are from reality or concern for women. 

Service providers are well within their rights to turn away someone whom they perceive to be a man from a women’s service, and women are within their rights to complain if they don’t. 

What if there aren’t any toilets that a transgender person can comfortably use? 

Where there are no unisex facilities and a trans-identifying person does not feel comfortable using facilities for their own sex, they have two practical options:

• Find somewhere else where there is a unisex option.
• Use the correct toilets for their sex.

The Supreme Court acknowledges that rules are sometimes in practice broken with impunity, but that this does not give someone the right to do so.

It concludes that, with or without a GRC, a transgender person does not have the right to use opposite-sex facilities. 

Everyone has had the experience of being caught short in less than ideal conditions, and many have used a toilet they are not entitled to use occasionally. For example, many people will have used a toilet in a pub or cafe which is intended only for customers. They are not entitled to do so (and the proprietor could put up a sign, tell them not to, or install a lock on the door that requires a code to discourage people from doing this). 

Similarly, many women will have gone into the men’s toilets when there is a queue for the ladies’ and no men around. Few men will have gone to the ladies’ in similar circumstances because it is more of a taboo, and for good reason: 98% of sex crimes are undertaken by men, with the most common being exposure, voyeurism and non-consensual touching. Men are stronger than women and their presence in a space where they are not supposed to be is alarming.

It cannot be assumed that a woman who does not speak up or complain about the presence of a man in a women’s space consents. She may be (quite rationally) frightened of a man who has shown that he does not respect rules.

Expecting men (including those who identify as transwomen) to stay out of women’s spaces is not an accusation that any individual man is intent on committing sexual assault, voyeurism or exposure, or getting pleasure from making women afraid. But without clear rules that everyone respects, these men cannot be kept out.

Decent men understand that they should respect boundaries put up for propriety, even where those boundaries are not well policed.

Both a “transman” using the men’s and a “transwoman” using the women’s are breaking a rule. But on top of that, the transwoman (a trans-identifying man) is doing something that could cause alarm and distress. This could rise to the level of a public-order offence or a criminal harassment charge if it is a course of conduct repeatedly directed at an individual, such as a work colleague.

The other options for a transgender person in a situation where there is no unisex option are to complain or sue for discrimination. This is unlikely to be practical in a one-off situation where a person finds themselves urgently needing to use the toilet, but in a workplace or leisure facility (such as the gym or cinema) a trans person could make a complaint or sue for indirect gender-reassignment discrimination if a lack of unisex facilities means they cannot go to the toilet comfortably at work or in practice use a service as a whole. 

The employer or service provider should consider how services include members of the group that share the protected characteristic of gender reassignment, and either offer a unisex alternative (which already exists in most larger buildings) or argue that it is not a proportionate expectation (for example in a small historic building which has just two toilets and no room for a third). 

Should service providers or employers just change all facilities to gender-neutral (unisex)? 

Some service providers and employers may be worried and think that the best thing to do to avoid an argument is to replace all their single-sex facilities with unisex. 

This is a bad idea. 

Separate-sex facilities are generally preferred, and are particularly important for women. They are easier to keep clean and to light and ventilate, and are more comfortable to use. They are more efficient, as the washbasins can be outside the cubicles, leading to faster throughput. They also allow for urinals, which are faster to use and keep the other toilets cleaner. 

Replacing separate-sex facilities with fully enclosed “superloos” with the handbasins inside gives privacy, but will mean that fewer people can go to the toilet in the same time and space. 

Women in particular feel less comfortable in unisex facilities. A row of unisex toilets in a busy venue (particularly a night-time venue) is an uncomfortable situation for many women, even if the hand basins are inside the toilet rooms. They may be forced to queue with men in a small enclosed space. Small spaces with floor-to-ceiling partitions are oppressive and can feel more unsafe than the traditional single-sex cubicles, because you don’t know who is outside the door, and you could get pushed into a cubicle. If you have a medical emergency you cannot easily call for help or communicate with people outside the door, nor can people outside see you if you have a seizure or lose consciousness.

Locks on public toilets are often faulty. This is a minor embarrassment in a single-sex washroom, but much more humiliating in a mixed-sex facility. Mixed-sex toilets and changing rooms also provide more opportunities for accidental-on-purpose exposure – a man may leave the door unlocked on purpose so that a woman accidentally opens it and sees him with his trousers down.

Ordinary, well-designed, single-sex facilities have features such as vestibules and corner turns at the entrance which put two layers of physical boundary between a woman on the toilet and a man who might be loitering nearby. This makes such facilities both feel safer and actually be safer, and deters opportunistic voyeurism and exposure.

Single-sex toilets with traditional cubicles are also places where parents (most often women) can supervise children more easily, because they, or a sibling, can monitor and reassure each other without having to be inside the cubicle together. Many women have had the experience of going to the toilet with the door ajar and a baby buggy wedged into it. 

Any employers or service providers who are thinking of replacing single-sex washrooms with unisex “superloos” or unisex toilets with a shared washbasin area should consider the impact on women (as well as on religious, disabled and older users, and on parents with children). In England they are also subject to Building Code T, which makes the provision of separate-sex facilities the norm for new-builds and refurbishments. 

Providing a single additional fully enclosed unisex toilet is usually a more appropriate way to avoid arguments. 

What about just changing the signs? 

Another suggestion has been to change the signs to show that some washroom facilities contain “cubicles” and others contain “cubicles and urinals” and let people choose. 

This is a bad idea. 

It is likely to be unlawful sex discrimination and inadequate provision. A washroom with urinals is not suitable for women. This means that all of the facilities are available to men and only half the facilities are available to women. Furthermore, not everyone will understand the signage.

This has all the disadvantages of unisex facilities for women, while also excluding them from half the space. 

Another bad idea is leaving the men’s toilets for men and changing the women’s into toilets “for everyone”. Again, this is likely to be unlawful sex discrimination. 

Will women who don’t look feminine enough be thrown out of women’s toilets?

Another argument being made is that having female-only toilets means that butch lesbians and other women who are said to look masculine (such as tall women and women with polycystic ovary syndrome) will be challenged or thrown out. 

This possibility is of course not a reason for men to be allowed into women’s toilets. 

The existence of self-policed men’s and women’s toilets means that occasionally a woman or girl may be mistaken for a man or boy and might be challenged. This is a rare confusion that can usually be cleared up in a matter of seconds when she speaks.

Does the Equality Act require that “transgender women” be excluded from women’s toilets only on a case-by-case basis?

This misinterpretation of the Equality Act has been prevalent for the past 15 years, and the Supreme Court’s judgment has firmly and unambiguously said that it is wrong. A single-sex service can be provided where it is a “proportionate means to a legitimate aim”. Once this gateway condition is met, there is no need for the service provider to assess whether it is proportionate to apply the rule to each individual.

As the Supreme Court says, the terms of the Equality Act: 

“would permit the exclusion of all males including males living in the female gender regardless of GRC status”. (paragraph 221)

“You can exclude them but you don’t have to”

This is misdirection. 

If you have put up a sign that says “women”, “female”, “ladies” or similar, or used a symbol that means this, then this is a notice that excludes men.

A man who chooses to disregard the notice is not exercising a human right; he is breaking a rule that exists to protect women. 

This could amount to harassment under the Equality Act and might amount to a public-order offence. 

The post The truth about toilets  appeared first on Sex Matters.

The number of people who feel generally comfortable using gender-neutral toilets has dropped eight percentage points since August 2019 to 41% of people.

50% of people now say they feel uncomfortable using gender-neutral toilets in public places, up by eight percentage points since August 2019. 

56% of women say they feel generally uncomfortable and only 35% feel comfortable. 

91% of people told YouGov that public spaces should include separate toilets for men and women (up from 85% in 2020). Only 5% say all facilities should be gender-neutral. 

The news comes as a man caught spying in women’s toilets defended his actions in court saying he thought that in Britain, “LGBTQ” people were allowed to use whichever toilets they liked.

The Government Office for Equality and Opportunity (GEO) has said that it is “a clear misinterpretation of the law” to suggest that transgender people have a legal right to access single-sex spaces and services intended for the opposite sex. It has sent over 400 examples of concerning guidance submitted by the public to the Equality and Human Rights Commission.

The GEO has also withdrawn its own previous guidance for employers, which said that “A trans person… should be afforded the right to use the facilities appropriate to the acquired gender role.”

Sex Matters has released a two-page briefing to help employers understand the law and best practice. 

Good practice: keep it simple, clear and safe

Do: provide separate toilets for women and men.

Do: also provide a unisex option if space allows.

Do: have clear, simple signs and expect everyone to follow the rules.

Do: explain to transgender employees that they cannot use opposite-sex facilities. 

Do not: replace all your separate-sex facilities with unisex. This is not inclusive.

Do not: allow trans individuals to use opposite-sex facilities and tell colleagues who feel uncomfortable to use the unisex. This is likely to be unlawful sex discrimination. 

Do not: relabel sets of traditional cubicled toilets (with a gap at the top or bottom, or with urinals) as unisex or gender-neutral. This is not sufficient and adequate provision. 

Do not: provide single-sex toilets only for men (or only for women) and expect the other sex to use the unisex facilities. This is likely to be unlawful sex discrimination.

The post Support for “gender-neutral” toilets falls appeared first on Sex Matters.

This question is being asked of politicians who talk about the need to defend single-sex spaces and services. What if a venue has only men’s and women’s toilets? Where is the transwoman meant to go?

The question about toilets is not just a “gotcha”, it is a serious question that needs to be answered clearly both for people who consider themselves to be transgender, and for those who are trying to manage facilities fairly, safely and lawfully. And it is not just about toilets; the same principles apply to showers, changing rooms, dormitories, hospital wards, and all kinds of spaces where the two sexes are separated for their safety, dignity and privacy. 

In most cases facilities are self-policed. Everyone knows what sex they are and they follow the normal social convention of using the toilets designated for their sex. Anything else would violate other people’s privacy.

Use the unisex option

If someone feels uncomfortable using toilets or other facilities designated for their sex, they may want to go elsewhere. This is their choice, but it does not mean they are entitled to use facilities for the opposite sex. 

In larger and more modern buildings there is now almost always a unisex toilet available. This year the government approved a change to the building code for public buildings in England that requires them to provide single-sex toilets and specifies that gender-neutral options could be a third option, not a replacement for men’s and women’s. 

What if they don’t want to? 

Many people who identify as transgender will answer in response to this that they don’t want to use a unisex option, because it means they are not being accepted in their gender identity. The answer to this is: sorry, but other members of the public have rights too and they do not have to pretend not to notice or care what sex other people are. 

There used to be a familiar sign by the tills in shops: “Please do not ask for credit, because a refusal often offends.” The same principle applies here. 

What if there’s only men’s and women’s?

In some places there may not be a unisex option: for example in older public toilet facilities, historic buildings and very small cafes, or gyms with only two sets of changing rooms. 

But it remains the case that there is no right for a trans-identifying person to use the facilities designated for the other sex. 

Their own level of discomfort in using the toilets, changing rooms and showers corresponding to their sex (or desire to use facilities for the opposite sex) does not justify imposing discomfort, and for some women fear, by using the other sex’s facilities.

Women who identify as men may not want to use women’s facilities, and if they have developed typically male features such as facial hair or a deeper voice so that they may be perceived as male, their presence in women’s toilets may cause other female users fear and discomfort. But this does not give them the right to use men’s facilities. Like trans-identifying men, such women may have to find alternatives. 

What about those with a gender-recognition certificate?

Very few trans-identifying people have gender-recognition certificates and they do not generally carry them around with them. Having a gender-recognition certificate does not change someone’s actual sex or their appearance. The ability of other people to recognise who is male and who is female is unaffected by such paperwork. 

If a service provider turns someone away from a space for women because that person is male, and it later turns out the person has a gender-recognition certificate and seeks to sue for discrimination, the service provider will be able to rely on the exceptions in the Equality Act.

Everyone is confused about the law

The question that politicians are being asked is a difficult one, because for a long time doctors, employers, government departments and public bodies told people with a transgender identity that they could use opposite-sex facilities. But they didn’t think about other people’s rights.

Labour’s national campaign co-ordinator, Pat McFadden, has said: “We want to protect women-only spaces but let’s be kind to people.” But it isn’t kind to women, to frontline workers or to trans people themselves to put everyone in an ambiguous situation without clear rules.

The next government needs to make it clear to both service providers and service users that a single-sex service should mean just that. There is no right for a man who identifies as a “transwoman” whether with a government certificate or without one to use women’s toilets, showers, changing rooms, dormitories or any other facilities that are just for women. This is why the meaning of sex in the Equality Act needs to be made clear. Whether you are male or female is what matters. Everyone needs to know that when they walk into a toilet labelled men or women, that space will be single-sex.

The post The vexed issue of toilets appeared first on Sex Matters.

Date: 5th October 2023

Sex Matters issues new briefing for Scottish head teachers following recent update to EHRC schools guidance

Campaign group Sex Matters has published a new briefing for Scottish nursery, primary and secondary head teachers on sex and gender based on updated guidance from the Equality and Human Rights Commission (EHRC) on the Equality Act 2010. 

The EHRC’s technical guidance on schools was published in 2014 but has been found to be inaccurate in its presentation of what the Equality Act says in relation to pupils who identify as transgender.  

The updated guidance makes clear that schools in Scotland are required to provide separate toilets for boys and girls. This relates to children’s sex, which is not changed by having the protected characteristic of gender reassignment. 

Maya Forstater,  Executive Director of Sex Matters, said:

“Scottish schools have been getting mixed messages about how to manage single-sex facilities from the government and from transactivist lobby groups for a number of years. The Scottish Government has already withdrawn and revised its guidance for schools once because it encouraged schools to ignore the rules on single-sex toilets.

“Our briefing means that Scottish head teachers can finally be confident that they are getting sound advice taken directly from the equality watchdog’s legal guidance.

“Following the EHRC’s update, the Scottish Government needs to urgently revise its guidance for schools again to make clear that single-sex facilities mean just that.” 

Representing the Scottish Government defending an appeal by the grassroots group For Women Scotland over its interpretation of the Equality Act, Ruth Crawford KC yesterday told judges in the Inner House that the Scottish Government recognises that transgender people without a gender-recognition certificate have no entitlement to use opposite-sex facilities. 

This aligns with the EHRC guidance, but conflicts with the Scottish Government’s own guidance to schools, which was published in 2021 after previous guidance was withdrawn following concerns that it was unlawful. 

The Sex Matters briefing for head teachers notes that the Equality Act requires that schools do not unlawfully discriminate based on sex (being male or female, a boy or a girl) or on the basis of “gender reassignment” (for a child: proposing to undergo transition). The update from the EHRC corrects inaccuracies in the 2014 guidance that relate to what schools must do to avoid “gender reassignment” discrimination.

Examples of unlawful direct gender-reassignment discrimination might include excluding a pupil because they identify as transgender or repeatedly insulting a boy who identifies as transgender by saying he looks silly. But an example which suggested that it would be direct gender-reassignment discrimination not to refer to a female pupil as a boy has been removed. 

Sex Matters is calling for members of the public to send the EHRC briefing to their local head teachers, and for the Scottish Government to revise its own guidance. 

The EHRC is the national regulator on the Equality Act 2010: its technical guidance provides “an authoritative, comprehensive and technical guide to the detail of the law”. 

Notes for editors

The Scottish Government published guidance for schools in 2019 together with LGBT Youth Scotland which stated that there is no law which says that single-sex toilets and other facilities should be used only by people of that sex. 

It stated that children should be allowed to choose whether to use male or female facilities based on their gender identity and that if other pupils feel uncomfortable “they can be allowed to use a private facility such as an accessible toilet, or to get changed after the trans young person is done”.

https://www.lgbtyouth.org.uk/media/1293/supporting-transgender-young-people-digital-version.pdf

This was withdrawn after criticism. Ministers determined that the “guidance that risked potentially excluding other girls from female-only spaces was not legal.”

https://forwomen.scot/03/12/2019/lgbt-youth-scotland-foi/

New guidance published in 2021 still suggested that pupils should be allowed to chose to use male or female facilities but said: “If a young person raises a concern regarding sharing facilities with a transgender young person and it is established that they will experience disadvantage as a result, then the school should seek to respect the rights of all.”

https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2021/08/supporting-transgender-young-people-schools-guidance-scottish-schools/documents/supporting-transgender-pupils-schools-guidance-scottish-schools/supporting-transgender-pupils-schools-guidance-scottish-schools/govscot%3Adocument/supporting-transgender-pupils-schools-guidance-scottish-schools.pdf

Links

Sex Matters briefing for head teachers:

https://sex-matters.org/take-action/update-schools-on-ehrc-guidance/

EHRC updated technical guidance:

https://www.equalityhumanrights.com/en/our-work/news/technical-guidance-schools-updated

Scottish Government’s guidance for schools: https://www.gov.scot/binaries/content/documents/govscot/publications/advice-and-guidance/2021/08/supporting-transgender-young-people-schools-guidance-scottish-schools/documents/supporting-transgender-pupils-schools-guidance-scottish-schools/supporting-transgender-pupils-schools-guidance-scottish-schools/govscot%3Adocument/supporting-transgender-pupils-schools-guidance-scottish-schools.pdf 

About Sex Matters

Sex Matters is a human-rights organisation co-founded in 2021 by Maya Forstater, who is its director, to campaign for sex-based rights. It lobbies for clarity on sex in law and institutions; publishes research, guidance and analysis; supports and mobilises people to speak up; and holds organisations accountable.

About Maya Forstater

Maya Forstater is co-founder and executive director of Sex Matters. In 2019 she lost her job as a researcher with the European arm of American think-tank Center for Global Development, after tweeting and writing about sex and gender. She was the claimant in the landmark test case which established that the protected characteristic of belief in the Equality Act covers gender-critical beliefs. Her website is ​forstater.com and she tweets @MForstater.

Sex Matters is a human-rights organisation campaigning for clarity about sex in law, policy and language | sex-matters.org

The post Schools in Scotland must provide separate toilets for boys and girls, says equality commission appeared first on Sex Matters.

As the owner of a busy licensed premises I wish there was more clarity on the provision of single-sex facilities. Licensing rules require that pubs provide toilets, and for years having male and female toilets was straightforward and understood by staff and customers alike. 

Pubs are sociable and lively places but they need to be run on clear guidance. One of the main objectives for licence approval is to maintain public safety. Customers need guidance as much as operators do.

It is not difficult to foresee how confusion between sex and gender identity raises issues in the hospitality trade. If a woman complains to staff that a man is in the women’s toilet then that situation can be dealt with appropriately with the legal knowledge that those facilities are for the exclusive use of women. However, if that individual declares they are not a man, whether a transwoman or non-binary, irrespective of how they present themselves, then what is the protocol for staff? What is the actual legal situation? 

Attempting to implement a policy which is not recognised or known by the general public could have disastrous consequences for any licensed premises, in terms of conflict between customers, legal liability and social media fallout. 

Many pubs seem to be already excusing themselves from having to deal with the potential conflict by making toilets “gender neutral”. In some this just involves taking away the signs on the door and replacing them with statements about what facilities they can find inside – cubicles or urinals. Is that even legal? it doesn’t appear to have come from any clear legislation. Do people prefer it? 

I think going unisex or “gender neutral” is a terrible proposition. I’ve seen them in practice and no one benefits, particularly women. 

My pub is small and in an older building. We have women’s and men’s toilets but no space for disabled or unisex toilets. We have very little trouble from our customers and incidents are few and far between but we have no official policy beyond the common understanding and historical norm of separation by sex. At the moment it feels like we are all fudging it with our fingers crossed that nothing bad happens.

I have considered getting clarification on how to deal with the issue if there is a conflict, but the only source of advice available was from pro-trans groups, effectively activist lobby groups. The buck should stop with government, but they have been among the most enthusiastic about transferring policy to lobbyists as opposed to taking hard decisions themselves. 

From a business point of view I yearn for clear rules and guidance from the government. The current confusion potentially allows for malicious behaviour. As it stands, any man could say “I’m non binary”. We don’t have a policy because we don’t know what the rules are any more.

The post Sex matters in the hospitality industry appeared first on Sex Matters.