The Scottish Government has stopped hiding behind the EHRC: now it must act

The Scottish Government has stopped hiding behind the claim that it needs to wait for the Equality and Human Rights Commission (EHRC) to finish updating its statutory code of practice before bringing its own policies on single-sex services into line with the law. 

Thanks to work by For Women Scotland we now know that this is not what the EHRC told the government. On 20th June Kishwer Falkner, chair of the EHRC, responded to an enquiry from For Women Scotland saying that the EHRC’s position had been misrepresented:

“We have been clear in our public messaging and in direct conversations with duty-bearers, including the Scottish Government, that they should not wait for our guidance but should be seeking to update their policies and practices in the light of the new understanding of the law, taking their own specialist legal advice where necessary.”

“We do expect the Scottish Government to update these as soon as possible to ensure they are complying with the law, and are writing to them urgently regarding this apparent misrepresentation of our position and their own responsibilities in this matter.”

On 24th June Michelle Thomson MSP challenged Permanent Secretary Joe Griffin at Holyrood’s Finance and Public Administration Committee based on this statement. She asked him to explain what action the Scottish Government was taking. Griffin stuck with the line that the Scottish Government was waiting for the EHRC guidance to be finalised. He said that it was working to: 

“prepare the ground so that when we have an understanding of what the consultation results with by way of the new guidance, we are ready. We understand policies that are affected, and we’re ready to implement that once the guidance is finalised.”

But it now seems the Scottish Government has changed its tune. 

The Scottish Government has written back to FWS saying it acknowledges the EHRC statement that:

“duty-bearers should not wait for our statutory Code of Practice for Services, Public Functions and Associations to be in place to review their policies to ensure they are complying with the law as now settled by the Supreme Court.”

It has also replied to us, saying:

”We are now taking action to implement the ruling. This includes the establishment of a Short Life Working Group to review existing policies, guidance and legislation which may be impacted by the judgment. The work of this group is underway and covers all relevant portfolios across government. This work is enabling us towards a state of readiness to take all necessary steps to implement the ruling.”

And on 1st July a Scottish Government spokesperson told The Herald:

“The Scottish Government has been clear that we accept the Supreme Court judgement and that public bodies have a duty to comply with the law.

Work is proceeding at pace to implement the ruling across Government. We have established a Short Life Working Group to ensure support and consistency in this.”

No need for delay

The Scottish Government must act urgently to update its policies. 

One of the most straightforward to update immediately concerns toilets. This could be fixed tomorrow with a simple one-line statement, just as the Scottish Parliament has done.

The Scottish Government cannot make the excuse that it lacks the infrastructure. It has had a commitment to provide gender-neutral options in all buildings for years, and there are already plentiful gender-neutral toilet facilities in almost all buildings, as well as separate-sex facilities. An FOI request by policy collective Murray Blackburn Mackenzie shows that 18% of toilets across the Scottish Government’s estate are provided in the form of “superloos” – that is, fully enclosed rooms with a single toilet and wash-hand basin. 

There are only a handful of sites where the Scottish Government says it does not have any toilets that are separate rooms. These are mainly small fisheries offices and field-monitoring sites (which may not have toilets at all). 

We have written again to the Scottish Government, giving it seven days to take action. We said: 

“As far as we can see there is nothing to stop the Scottish Government immediately bringing the policy on toilets into line with the law, by making a statement that all facilities designated as male or female within the Scottish Government estate are to be interpreted as meaning biological sex, and that gender-neutral options are widely available.”

Read our letter…