Please see the EHRC interim guidance and our legal update on the Supreme Court judgment itself.
The EHRC has said that further clarity will be provided soon in its fully updated Code of Practice and that the interim guidance is simply intended to highlight the main consequences of the judgment. The intention is that that the fully updated Code of Practice will be issued at some point later this year, possibly during the summer.
What does the interim guidance say?
The guidance refers to the Supreme Court's ruling that in the Equality Act 2010 ("EqA"), "sex" means biological sex. This means that, under the EqA a "woman" is a biological woman or girl and a "man" is a biological man or boy. If somebody is trans, they do not change sex for the purposes of the EqA, even if they have a Gender Recognition Certificate (GRC) or have undergone gender reassignment surgery. For the purposes of the EqA, their sex remains the one they were at birth.
The guidance goes on to state that in workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed (although the legislation is slightly more nuanced than this – there are exceptions where each toilet is in a separate room lockable from the inside - please see Have the right toilets and washing facilities - HSE).
The guidance states that it is not compulsory for services that are open to the public (rather than workplaces) to be provided on a single-sex basis or to have single-sex facilities, such as toilets. These can be single-sex, but only if having them on a single sex basis is a proportionate means of achieving a legitimate aim and they also meet other conditions in the EqA. However, it could be indirect sex discrimination against women if the only provision is on a mixed-sex basis.
The following key points are also made in the interim guidance -
In workplaces and in 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 they must then 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 woman) 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.
Unsurprisingly considering the complexity of this area and the short amount of time since the judgment was published, there are a number of questions left unanswered by the interim guidance.
For example, the point raised above suggests trans people should not be left with no facilities for them to use. What is the practical guidance on this where buildings and budgets do not allow for mixed sex facilities in addition to single sex facilities? We can expect gender reassignment claims to be brought under the EqA where there are no suitable or equivalent facilities provided for trans people.
Also, will it be a proportionate means of achieving a legitimate aim to provide services on a single sex basis, rather than also allowing trans people to use those facilities too - such as having a women only exercise class that does not allow trans women also to attend?
The difficult reality is that employers and service providers are likely to face sex discrimination claims if the EHRC interim guidance is not followed, but if it is followed they are likely to face gender reassignment claims from trans people who feel they have been discriminated against.
Next steps
The EHRC confirms that it aims to provide the updated draft Code of Practice to the UK government by the end of June this year, for ministerial approval. The Code will support service providers and public bodies and associations to understand their duties under the EqA and put them into practice. The EHRC will shortly be undertaking a public consultation to understand how the practical implications of the Supreme Court judgment may best be reflected in the updated Code. The consultation will be launched in mid-May and will last for two weeks.
Although not entirely clear, it is hopeful that there will be an updated Code of Practice for employment too. We will have to wait and see.
Comment
The Supreme Court judgment has helped provide clarity around the legal parameters of the EqA. However, putting this into practice is not an easy task. A number of different rights are at play here and there are a multitude of claims which could be brought – on the basis of sex, gender reassignment and religion or belief. Following the interim EHRC guidance does not protect an employer or service provider from litigation which will is likely to follow – caution should be taken and the wording of the EqA carefully considered. The updated EHRC Code is expected in the summer following a period of consultation and should shed further light on what action should be taken. However, the reality is that we will see a raft of cases over the next few years where the application of the EqA in this area is tested.
For now, employers and service providers alike should assess their current facilities and provision of services to check they are in line not only with the EqA, but also health and safety laws. Policies and procedures should be reviewed and individuals should be educated to ensure there is an understanding of the correct approach to take. Employers and service providers should also be prepared for the inevitable questions which will be asked.
Balancing different protected characteristics is notoriously challenging. As always, engaging the workforce and service users will be absolutely key when navigating this complex area of law. Being able to evidence a balanced approach, genuine engagement, clear communication and careful thought should help mitigate the risk of claims.
We will keep you updated on the updated EHRC Code. If you would like any legal advice with regard to the issues raised in this update please do not hesitate to get in touch.
