Single sex service provision: toilets, changing rooms and such like, the EHRC Code and its guidance.

This article answers questions such as:

• Do we have to provide single sex toilets only?
• Do trans people have the right to go into any toilet?
• Are trans women allowed in ladies toilets?
• Is it lawful to exclude trans women from services such as rape counselling services?
• How should we deal with trans people in our changing rooms and toilets?

This topic applies to schools, offices, shops, restaurants, bars – in fact, everywhere which provides single sex services such as toilets and changing rooms etc.

This topic continues to be both important and the subject of much media discussion. We read lots of articles and commentary on this subject and note they can be very one sided. The issue also creates huge anger – one side or the other on the ‘gender debate’ says something and immediately the other side pitches in with absolute rejection of the other’s position. Words like ‘transphobic,’ ‘terf,’ and ‘genocide’ are often used. The subject is quite complex so this article, which provides the background and an explanation of the law, is fairly long.

All this ‘heat’ and anger in the debate is sad, as this is an important issue that deals with the lives of ordinary people just wanting to go about their normal day to day activities. For example, some and perhaps most trans women expect to use the Ladies’ toilet. However, some women don’t want men to be in the Ladies’ toilet, including trans women (who many consider are men). In the last sentence we used the words ‘women’ and ‘men.’ In this area of debate, it is sometimes necessary to define ones terms carefully as otherwise meaning is lost and confusion reigns. Employment Tribunals grapple with this definitional problem all the time – they use words like ‘birth woman,’ ‘natal woman’ and ‘biological woman’ to distinguish those types of women from trans women.

Even the issue of whether it is ‘trans women,’ ‘transwoman’ or ‘trans-women’ causes concern. We think ‘trans’ can be used as an adjective and, therefore, use trans woman or trans man. This article refers to the Equality and Human Rights Commission as the EHRC, and the Equality Act 2010 as ‘the Act’.

Although the Act is well known, there also exists an Equality Act 2006. That Act established the EHRC. The EHRC it is an important organisation which should exercise its functions with a view to encouraging and supporting the development of a society in which:

(a) people’s ability to achieve their potential is not limited by prejudice or discrimination, (b) there is respect for and protection of each individual’s human rights, (c) there is respect for the dignity and worth of each individual, (d) each individual has an equal opportunity to participate in society, and (e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.

Section 14 of that Act states that the Commission may issue codes of practice. It has issued several such codes including one on employment and one on ‘services, public functions and associations.’ The Services code came into force in 2011. Sections 13.57 to 13.60 of that code deal with gender reassignment discrimination and separate and single sex services.

The Services Code is forthright in what it says about trans peoples’ rights to access such services and this forthrightness has been criticised. In 2022 the EHRC published new guidance on this subject which, although not a statutory code of practice and thus carrying less ‘weight’ than the Code, rowed back on the previous forthrightness.

This article explains the law on single service and separate sex service provision in respect of trans people and makes suggestions for actions services providers might take to avoid discriminating on grounds of both sex and gender reassignment.

The law on such discrimination is found in section 29 of the Equality Act 2010. That section states that a service provider must not discriminate in respect of services it provides to the public. Schedule 3 of the Act, however, provides various exemptions to this general prohibition. There are 34 paragraphs dealing with exemptions. Workplace toilets are not usually provided to the public but similar laws apply to the provision of single sex toilets to employees.

As we said, general prohibition is found in section 29 of the Equality Act 2010:

A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

There are also secondary prohibitions:

The service provider must not:

1. discriminate as to the terms on which the service is provided to the person requiring the service,

   a. by terminating the provision of the service or

   b. by subjecting the person to any other detriment.

2. They must not harass the person requiring the service or a person to whom the service-provider provides the service.

3. They must not victimise by not providing the service or as to the terms on which it is provided, by terminating the provision of the service to that person, or subject him or her to any other detriment.

4. They must not fail to make reasonable adjustments.

Employers can be liable for the acts or omissions of their staff. This is called vicarious liability but there is a defence – called the statutory defence. An employer will not be liable for unlawful acts committed by their employees in the course of employment where the employer has taken all reasonable steps to prevent such acts. This is found in section 109(4) of the Equality Act 2010 which provides;

In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A

(a) from doing that thing, or (b) from doing anything of that description.

Its difficult but not impossible for an employer to successfully rely on the statutory defence. At the very least it will have to have a policy on these matters and regular and updated staff training.

Section 31.7 explains that a service provider ‘not providing a person with a service’, includes a reference to (i) the service-provider not providing a person with a service of the quality that the service-provider usually provides to the public (or section of the public that includes that person), or (ii) the service-provider not providing the person with the service in the manner in which, or the terms on which, the service-provider usually provides the service to the public (or the section of the public that includes that person). So, providing a toilet or changing room that is worse than the one provided to others will not be a defence.

We said earlier that there were lots of exemptions to the general prohibition. In Schedule 3 of the Act paragraphs 26 and 27 deal with exemptions in respect of the protected characteristic of sex. Although they set out some other requirements for the exemptions to apply, they both use the phrase ‘a proportionate means of achieving a legitimate aim.’ That phrase is also used in section 19 of the main part of the Equality Act 2010 in respect of indirect discrimination to say that the imposition of a provision, criterion or practice (‘PCP’) can be discriminatory if it can’t be shown that it is a ‘proportionate means of achieving a legitimate aim’.

So, broadly speaking, ‘something’ is not discriminatory if it is a proportionate means of achieving a legitimate aim. You could read Lady Hale’s judgement in the Supreme Court in the case of Homer v West Yorkshire Police for a judge’s view on what that phrase means. Some parts of her judgement are as follows:

[the words] a “proportionate means of achieving a legitimate aim”, [have] to be read in the light of the Directive which it implements. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. Some measures may simply be inappropriate to the aim in question: thus, for example, the aim of rewarding experience is not achieved by age related pay scales which apply irrespective of experience.

A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate. The criterion itself [needs to be] justified rather than that its discriminatory effect be justified.

Part of the assessment of whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer.

To some extent the answer depends upon whether there were non-discriminatory alternatives available.

Paragraph 28 of Schedule 3 deals with gender reassignment discrimination in a similar way as the earlier sections. It refers to ‘conduct’ not being discriminatory if it is a proportionate means of achieving a legitimate aim.

It’s worth setting out the entire section:

28 (1) A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim. (2) The matters are— (a) the provision of separate services for persons of each sex; (b) the provision of separate services differently for persons of each sex; (c) the provision of a service only to persons of one sex.

There are no explanatory notes accompanying paragraph 28. However, the EHRC Services Code of Practice attempts to provide guidance into the use of paragraph 28, presumably in order to meet its statutory aims as set out above. The Services code is a statutory code so has legal force. It isn’t the law so doesn’t override the law but must, if appropriate, be taken into account in any case where it is relevant. The new guidance isn’t a statutory code so doesn’t have to be taken into account.

That said, if the actual law provides the answer it would be wrong to consider the Code or the guidance. That sentence paraphrases similar wording by the EAT in Elliot v Dorset CC 2021 at paragraph 31:

The requirement to consider the Guidance or Code applies only where the tribunal considers them relevant. The tribunal is required to “take account” of them. I do not downplay the great assistance that the Code and Guidance often provide; but they are not to be followed without thought, to be construed as if statutes; and must always give way to the statutory provisions if, on a proper construction, they differ from the Code or Guidance. Where consideration of the statutory provision provides a simple answer, it is erroneous to find additional complexity by considering the Code or Guidance.

Something similar was said by the House of Lords in SCA Packaging v Boyle in 2009 - Statutory construction remains a matter for the courts, not for Departmental Guidance. If the court considers that the Guidance is a mis-statement or mis-application of what Parliament has enacted, then it must say so.

The Code contains only 4 paragraphs dealing with the gender reassignment exemption of paragraph 28. These are paragraphs 13.57 to 13.60. They are a guide to understand any use of the paragraph 28 exemption. They are the paragraphs we described as ‘forthright’ earlier in this article.

Paragraph 13.57 states that if a service provider provides single or separate sex services, they should treat transsexual people according to the gender role in which they present. That statement alone appears to be contradictory to paragraph 28 which provides an exception allowing transexual people not to be treated according to the gender role in which they present. That exemption is, however, mentioned immediately after the ‘should be treated’ sentence. It basically reinstates the law that excluding transexuals or providing a different service to them is not discriminatory if it is a ‘proportionate means of achieving a legitimate aim’. The entire paragraph could be re-written more simply as ‘unless the legal exception applies, transsexual people should be treated according to the gender role in which they present.’ That is a better statement of the law.

Some people take the view that paragraph 13.57 is illegal as it doesn’t reflect the law. This was one of the losing arguments, however, used in a judicial review application case called AEA v EHRC [2021] EWHC 1623. AEA in this case stands for the Authentic Equity Alliance. That case does not form any sort of binding precedent on these issues as it was merely an attempt to persuade a court to allow that argument, amongst others, to go forward for a full hearing.

As we said, in 2022 the EHRC published its new guidance on separate and single sex service provision. We think this may have been produced as a result of public comment and dissatisfaction about the existing Code, particularly where it said service providers should treat transsexual people according to the gender in which they present. The guidance is clearly an attempt to roll back the forthrightness of the Code.

What the Code doesn’t do in paragraph 13.57 is provide any guidance on the interplay between the protected characteristic of sex and the protected characteristic of gender reassignment as they affect single sex services. As we said, paragraphs 26 and 27 of Schedule 3 deal with exceptions to the general ‘no discrimination in services’ as regards the protected characteristic of sex. Those paragraphs again use the “proportionate means of achieving a legitimate aim” wording to describe the test for whether the exception is allowed. Those sections also set out some other requirements such as that the exception can only be permitted if a joint service for both sexes would be ‘less effective,’ that it isn’t reasonably practicable to provide the service other than as a separate service provided differently for each sex, that only persons of one sex have need for the service etc.

Incidentally, the reference in paragraph 27(2) of Schedule 3 of the Act to the words ‘the condition is that only persons of that sex have need of the service’ seems to us to mean that the Equality Act is based on ‘sex’ meaning biological or natal sex. If, in this context, sex means biological or natal sex plus legal sex as created by a gender recognition certificate, then paragraph 27(2) of Schedule 3 would be meaningless. Only biological women, for example, require cervical screening tests and that sort of absolute single biological sex requirement must be what “only persons of one sex have need for the service” is referring to. To say that more simply, parts of the Act would be meaningless if sex refered to either “females plus some males with a certificate” or “male plus some females with a certificate”.

So, paragraphs 26 and 27 say that it is not discriminatory to provide single or separate sex services if to do so would be a proportionate means of achieving a legitimate aim and paragraph 28 says the same about gender reassignment exclusions.

Therefore, you can exclude those of the opposite sex from a single sex service providing two tests are met. The first is whether you have a legitimate aim in setting up such a service. The Act gives lots of reasons for setting up such a service. Given that they are listed in the Act any or all of them will all be considered as legitimate aims for the service to pursue. In other words, single sex services will be justified by reference to one or more of these aims. One of those legitimate aims is found in Schedule 3 para 27(6):

(a)the service is provided for, or is likely to be used by, two or more persons at the same time, and

(b)the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex.

The second of the two tests mentioned above is likely to be be more important one. It is whether it is proportionate to exclude those of the opposite sex. It appears to us that the proportionate means of achieving a legitimate aim test for sections 26 to 28 must be the same. Therefore, if this is correct, and as far as we are aware this precise point hasn’t been tested in court yet, if it’s a proportionate means of achieving a legitimate aim to provide a single sex service to women, it is also a proportionate means of achieving a legitimate aim to restrict such services to natal or biological women (or men as the case may be). It other words if it is proportionate to restrict entry by men it is also proportionate to restrict entry by trans women. The AEA v EHRC case did approach this subject but did not decide on that point. We could say this in simpler terms: single sex services are an all-or-nothing package: it’s either proportionate and legitimate to have a female single sex service or it isn’t.

This is exactly what the Attorney General said on 12th August 2022:

“In law, single sex services are intended for one sex only: that is the very thing permitted by schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are XY chromosome adults using it, however they define themselves personally, it becomes mixed-sex. The existence of a Gender Recognition Certificate can create a legal position but cannot change biological reality.”

The guidance from 2022 does not carry the statutory weight of the 2011 Code of Practice. The guidance is entirely about gender reassignment matters. As we said, the Code leads with the claim that service providers ‘should treat transsexual people according to the gender role in which they present’ unless the exemption applies, whereas the 2022 guidance explains how a separate or single-sex service could be established, sets out things that might be a legitimate aim and explains that there are circumstances where it is lawful to prevent, limit or modify trans people’s access to the service. It is a change of direction to say the least. The guidance contains a list of possible legitimate aims: “privacy, decency, to prevent trauma or to ensure health and safety.”

It does not repeat the Code statement that trans people should be treated according to the gender role in which they present, it does not repeat the Code’s statement that where a transexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, and it does not repeat the paragraph that says that service providers should consider whether their policy should be followed on a ‘case by case’ basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances. Those two last points, visually indistinguishable and case-by-case, do not appear in the Equality Act 2010 at all and, as we said, they do not appear in the 2022 guidance.

Critics of the Code’s statement about using a case-by-case approach have, probably rightly in our view, said that it is impossible in practice to make a case-by-case determination of someone’s access to the changing room, toilet or whatever. They point to what may be a poorly paid shop worker or nightclub attendant, for example, having to determine spontaneously someone’s eligibility to enter a single sex service. The guidance does say that any policy you have should make provision for a determination of whether particular circumstances justify departing from the policy. In practice, that might be that a trans person can raise their concerns with senior management who will consider them but, in the meantime, the policy applies.

The issue of ‘case by case’ determinations and the Code’s reference to a transsexual person who is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender normally being treated according to their acquired gender, also raises another problem. It is that in practice it is completely inappropriate to make decisions on a ‘case by case’ basis. Are those decisions going to be made based on whether someone ‘passes’ or not, whether a trans woman looks like a man, a trans man looks like a woman and who is going to make these decisions ‘on a case by case’ basis? The entire concept of ‘case by case’ is nonsense in many situations.

We think, therefore, that it is perfectly lawful to make certain spaces, such as ladies’ changing room, ladies’ toilets, rape crisis counselling centres and such like female-only as a matter of blanket policy. This means excluding trans women (biological men with GRCs declaring them to be women) as well as men without GRCs. Incidently, this is what Keir Starmer said on 1st July 2024 when specifically asked this question.

Those who argue in favour of men and transwomen having access to female single sex spaces and services, argue that the assessment of proportionality has to be on a case-by-case basis as between individual users rather than as between policies. In our view, as above, that is not the case. Blanket policies are capable of justification under the Equality Act and the Act’s explanatory notes use one as an example; specifically in the case of excluding all transexual people from a single sex service. It is found at paragraph 740 of the notes:

“A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.”

Thus, and it is worth re-stating: it is incorrect to claim that use of a single-sex exception requires a case by case analysis: it does not. The Supreme Court has, for example, decided that a policy or general rule is proportionate. An example of this is the SC ruling on the Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill where at para 29 it says:

questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case.

The inappropriateness of case-by-case analysis as between individual users supports the idea that the only feasible rule is ‘biological men’ or ‘biological women’ only but that anyone else can use the gender-neutral services. When commenting on this subject, trans supporting people refer to the fact that trans people are all at different stages of their ‘journeys’ and that, therefore, such a blanket rule is inappropriate for someone who ‘passes’. We don’t think that those trans people have thought this through – are they actually asking for all changing rooms to have a ‘guardian’ at the door instantly taking a view on whether the person in front of them ‘passes’ or not – are they going to be happy when a shop assistant instantly assesses someone as a man and rejects their contention ‘but I’m a woman’?

For example, the organisation ‘Mermaids’ on a webpage entitled ‘know your rights’ says:

“Each decision has to be dealt with on its ‘own facts.’ A facility or school cannot have a blanket rule to not ever allow trans people to use single sex spaces.”

That Mermaids statement seems to us to be completely wrong.

Predictably, much comment has been made on the fact that the 2022 guidance has rowed back from the forthrightness of the 2011 Code. Trans supporting organisations have criticised it whereas gender critical organisations have welcomed it. We note two things: firstly, neither the guidance nor the Code is the law, but the Code carries statutory weight and, secondly, as this is a subject that governs everybody’s ordinary lives, it is a subject that demands certainty. It is for the Government to provide authoritative guidance on this subject and, although there are some indications that it may do that, at the time of intially writing this article, in December 2023/ January 2024, it shows no sign of doing so.

As to an overall policy, we see clearly that many people accept that trans men are men, trans women are women and that they all should use the services according to the gender in which they present. If that is your Company’s policy: fine, publicise it but be aware that your staff or customers may sue you. This would be on the basis that to ‘promise’ that your toilets, for example, are single sex but to allow men into the ladies is to discriminate indirectly against women, and particularly against members of certain ethnic and/or religious minorities. In other words, by putting up signs on the toilets saying ‘Ladies’ and ‘Gents’ or whatever, you are representing to your customers that the toilets will only be used by those of the sign on the door. If you allow men into the ladies toilet you have stopped providing female-only toilets and women may have an indirect discrimination claim against you.

If, however, you don’t want to open your toilets and changing rooms to all those who identify as the gender of the label you put on the door, then be aware that trans identifying people may sue you. We think that, although there is vast amount of debate and column inches devoted to this subject, there are only two choices outside individual gender-neutral lockable toilets and changing rooms. Outside that possibly unobtainable standard, it seems to us that the choice is binary: a) toilets and changing rooms should not be based on one sex or another or b) toilets and changing rooms should be biological or natal members of one sex or the other and that that requirement should be set in stone in the law, backed up with effective enforcement and protection from litigation for the staff. Nothing in between, in terms of the established system of, for example, a single sex toilet comprising cubicles and sinks in the open area, seems to us to address the concerns on one side or the other at all.

As regards a policy; to go back to our binary point above, we spent some time thinking about an organisation having a policy. A policy is there to set out the organisation’s inclusivity or exclusivity rules. For example, it might set out why it excludes trans people from a service provided for one sex or another. That sort of policy is, in reality, about biological males who identify as trans women in women’s spaces and biological females who identify as trans men in men’s spaces. The EHRC guidance says, ‘if you have a policy, you should be prepared to consider whether particular circumstances justify departing from the policy.’

In its Code it also stated: ‘A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances.’ As we said, case by case assessment is often unworkable.

Our advice is to think very carefully about such a policy. The Youth Hostel Association of England and Wales had such a policy. In January 2019 it said, about exemptions from its sleep in the dormitory which matches the gender identity you present policy:

“In certain circumstances we may choose to invoke these exemptions; however, this is not as a rule. An example of these circumstances is people who have been the victims of abuse. In such situations we would work with all parties to provide a solution while still ensuring everyone has access to our services. We invite people who meet the above criteria to get in touch with us in advance; please contact our customer care department at customercare@yha.org.uk. Individual requests will be dealt with on a case-by-case basis. Please be aware that these requests can take up to 14 days to process.”

That was its published policy. It set out its policy on excluding certain people from its gender-neutral bedrooms policy. In having that policy, the YHA expressly thought it was sensible, for example, for an abuse victim to have to email a stranger 14 days before his or her stay to explain their abuse and requirement to stay in a single sex dormitory. The YHA said that it would consider such a request ‘on a case-by-case basis – picking up those words from paragraph 13.60 of the Code. It has now changed the wording but not its policy and still wants 14 days’ notice of individual requests for an exemption, to be considered on a “case by case basis”.
The YHA’s policy was ‘inclusivity’ with ‘exclusivity on a case-by-case basis.’ A thought experiment is to think about what would be required if its policy was the opposite: biological sex only for our dormitories unless we decide otherwise. It would presumably consider such exceptions ‘on a case-by-case basis’. In such a case, what is a trans woman supposed to do – email the YHA to say, ‘I pass as a woman’ or ‘the intentions behind my desire to sleep in the same room as ladies are entirely honourable.’ Possibly, such a trans woman would not email the YHA anyway on the basis that she considered herself to be a woman and entitled to use the ‘biological women only’ dormitory. It is the daftness of thinking that you can sensibly operate a case-by-case decision policy that led to our view that the decision ultimately is binary – all in or all out. If you have a policy, which you should, to comply with the Code, it could explain the inaptness of considering personal characteristics on an individual basis but should at least provide for high level consideration of the effect of any policy you have on people who have a diverse gender identity. It should allow for consideration and review of the policy’s impact on non-binary identifying people as well as those who experience gender dysphoria, no matter which stage they are at in their transition. It should ensure that the considerations given to all sides of the ‘debate’ are recorded and explain what workable solution has been adopted, with potential for review.

To our Clients we can say that we can assist with the policies, guidance and training mentioned above. If you want to exclude trans people from single sex services or limit or modify their access to such services, you must consider the law carefully and also consider your client demographic, your advertisers, suppliers etc. Clearly, you should consider whether your rule is a proportionate means of achieving a legitimate aim and the rest of the law on this subject. You should also ensure that your message is clear – if your toilets or changing rooms are for biological women only, for example, then say so clearly on the door.

If you want to include trans people in all services historically provided for only one sex, then again consider your client demographic, your advertisers, suppliers but also consider who will self- exclude, who will complain and whether you are liable for sex discrimination. Again, consider the law and whether your rule is a proportionate means of achieving a legitimate aim.

Whatever the decision, your organisation should canvas the views of service providers; record the reasons you’ve taken for the decision along with any supporting evidence and record any situations where you have departed from the normal policy. If at all possible, you must make alternative provision available such as, for example, a gender-neutral toilet or changing room or, as the case may be, a single sex facility. Your policy should also deal with your consideration that there was no less discriminatory way to achieve the same objective.

If a service provider creates a policy, having taken soundings from its customers or staff, allows high-level consideration of any given exception (even if in practice that is unworkable) and its rule or policy is the least discriminatory approach, it will be acting lawfully.

There is one further point to note – gender recognition certificates. Companies will have problems if they create an exception for, say, a trans woman with a gender recognition certificate, because acting in an official capacity it can be a criminal offence to disclose the existence of such a certificate. A Company that says no trans women, for example, can use the ladies toilet, except for say one particular employee, is likely to be disclosing the existence of that certificate. It may also run into GDPR issues in so doing. There is no way round this situation except going back to the binary point above – an entire ban on one sex or another based on biological or natal sex, or no distinctions made on sex whatsoever.

We know from experience that when this subject is raised trans supporting people say ‘what about section 9(1) of the Gender Recognition Act 2004 (‘GRA’). That section says that a person is entitled to be treated as the acquired gender ‘for all purposes’. This was qualified in Forstater in the EAT to ‘all legal purposes’ but even so section 9(1) is subject to provision made in the GRA or any other legislation including section 9(3) of the GRA and as we have said about the Equality Act exemptions. In short – the Equality Act expressly allows those in possession of a GRC to be treated for some purposes as their birth and not acquired sex. This reflects the the law in this country which is that sex can’t be changed.

Addendum – Workplace toilets and ‘who is the correct comparator for a trans woman in direct discrimination cases.’ Nothing in the above article deals directly with toilets that employers provide for their staff. The law on that subject includes the Workplace (Health, Safety and Welfare) Regulations 1992 which at section 20 states that workplaces shall provide separate rooms containing conveniences 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. If you tell your staff they can use any facilities they please, so that the separate men’s and women’s toilets are no longer single sex but mixed, you will be breaking the law.

At the time of writing, the employment tribunals are getting the law wrong when dealing with gender reassignment discrimination cases: for example, Fischer v London United Busways Limited case number 2300846/2021 (with the judgement being dated 28th July 2023) and V v Sheffield Teaching Hospitals NHS Foundation Trust (judgement 1st July 2022). In V v Sheffield, for example, although the Tribunal correctly identified that the first test for direct discrimination claims under section 13 Equality Act 2010 was consideration of whether the employee was treated less favourably than an actual or hypothetical comparator whose circumstances were not materially different, the tribunal compared the claimant, being legally a man, to a woman in regards to questions as to what he was doing half naked in a woman’s changing room. Of course, a man would be questioned in those circumstances but, by comparing him to a woman who wouldn’t be so questioned, the tribunal found he had been discriminated against. This seems to be completely incorrect. We believe that the correct comparator point was settled, as regards the Equality Act 2010 by R (Green) v Secretary of State for Justice [2013] EWHC 3491 (Admin). In that case, at paragraph 67 the Judge said:

“A comparator has to be found in order for there to be discrimination or for the claimant to show she has had less favourable treatment. The claimant asserts the comparator should be a female prisoner; whereas the governor contends it should be a male prisoner. There can be no doubt the claimant has a protected characteristic – gender reassignment. The claimant is, however, male. The only possible comparator is to a male prisoner who is not undergoing gender reassignment”.

and

“Frankly, it is almost beyond argument that the only comparator is a male Category B prisoner at HMP Frankland. I am influenced by the judgment of the Court of Appeal in Croft v Royal Mail Group PLC [2003] EWCA (Civ) 1045. I find it impossible to see how a female prisoner can be regarded as the appropriate comparator. The claimant is a man seeking to become a woman – but he is still of the male gender and a male prisoner. He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.”

The same ‘utterly wrong comparator’ point can be made about the Fischer case but, in the event, it did not rely on that point as it found that the alleged insult didn’t happen anyway.

Finally! an update

Having the protected characteristic gender reassignment (remembering that it applies to someone anywhere on their “journey”) means you shouldn’t be treated less favourably than another person of your sex would be if they didn’t have that protected characteristic. We know from the Green case above that the correct comparator to a trans woman is a man and for a trans man a woman. This means that if a trans woman without a gender recognition certificate is refused entry to a ladies’ changing room or ladies toilet the claim is not gender reassignment discrimination but sex discrimination. That is because that trans woman is a man in the eyes of the law. If a man would be refused entry to a ladies’ toilet, then the sex discrimination claim would fail. We now have the Scottish Court of Session decision in For Women Scotland v The Scottish Ministers [2023] CSIH 37 (FWS3). The decision is dated 1st November 2023. In summary, that case decided that for the purposes of the Equality Act 2010 (and a particular bit of Scottish legislation) the sex of a holder of a gender recognition certificate is that of the acquired gender.

We now have to adopt a different approach to proportionality defences depending on whether someone has a GRC or not. A trans woman is a man for the purposes of fatherhood (section 12 of the GRA) and a man when considering the inheritance of a peerage, the provisions of a will or in respect of sport, if the organisers of that sport so decide.
If that person has a gender recognition certificate and wants, for example, as a trans woman to go into the ladies’ toilet, then legally, following FWS3, she is a (legal) woman, and although she can still be excluded from the ladies toilet the claim is sex discrimination not gender reassignment discrimination as it would be if they didn’t have a GRC.

In the paragraph above, we said that a GRC possessing trans woman could be excluded from the ladies toilet. In our view that hasn’t changed following FWS3. That point was made in the FWS3 case where it referred to the permitted exclusion if proportionate and a legitimate aim. It set out paragraph 28 of schedule 3 (which we have set out above) and then said “This [paragraph] entitles the service provider, subject to a proportionality test, to exclude a transsexual person. That is so whether or not the person holds a GRC, given that they continue to possess the protected characteristic of gender reassignment. While it is not clear that paragraph 28 was directed specifically towards those holding a GRC, it is in this context that it is most likely to operate. Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex. Clearly, paragraph 28 might still have some utility in the case of those who do not hold a GRC, for example, where a service provider does not require proof of sex by presentation of a birth certificate or GRC, yet still refuses access to a person, which can only be on the basis of their gender reassignment. However, the importance of this paragraph is that it provides the only basis upon which a person might be permitted to exclude a person with a GRC from services which are provided for their acquired sex. We note that this is consistent with Guidance issued by the Equalities and Human Rights Commission as to the operation of these provisions.”

In this part of the judgement the law has caught up with the revised guidance from the EHRC which we mentioned at the start of this article. It can be legitimate to “exclude a person with a GRC from services which are provided for their acquired sex.”

The law now seems to be thus: those without a GRC have no prima facie right to access single sex services provided for the opposite sex to their birth sex. Those with such a certificate have the prima facie right to do so but can still be excluded if a proportionate means etc.

In the real world of poorly paid shop assistants, gym employees and nightclub staff, the question is of course ‘what do we do?’ This is a matter for management to give decisive guidance and provide proper training.

Earlier in this article we mentioned paragraph 27(2) of Schedule 3 to the Act, especially the words ‘the condition is that only persons of that sex have need of the service’ and said that it appeared to us to mean that the entire Equality Act is entirely based on ‘sex’ meaning biological or natal sex. In FWS3 those opposing the inclusion of acquired sex in the equality act meaning of sex could point to sections like 27(2) of Schedule 3 to say that the law would become meaningless if their point wasn’t accepted. In response to arguments like that, the Court of Session in FWS3 said ‘It is neither practical nor necessary for the court to attempt to examine every section and every schedule of an Act of Parliament, which stretches to some 336 pages, to determine whether in some different and hypothetical set of circumstances it may be necessary to adopt a contextual interpretation of terms such as “sex” or “gender” based on biology’, so it didn’t!

The importance of looking at paragraphs like s27(2) of Schedule 3 is that if sex means natal sex plus legally acquired GRC sex (as following FWS3 it appears to do) then the law becomes unworkable. That section provides one of the conditions necessary to avoid a sex discrimination claim which is that the service is one that “only persons of that sex have need of.” We could use cervical cancer services, prostrate checks, pregnancy clinics etc. All of these are services where “only persons of that sex have need of” so, following FWS3, those words now have no meaning as there are no services where only persons of one sex have need of.

To return to our hard-pressed shop assistant standing outside the changing room: how can they ascertain, for example, whether a male who seeks to use a single sex service has a GRC and, therefore, a presumptive right of being there, unless the gender recognition exclusion applies. There is no official guidance or legal cases on this subject. This means that there is no guidance on whether the shop assistant etc. has the right to ask about a GRC, no guidance on whether they should ask for one and equally nothing on whether the person so asked has to show a certificate or even answer any question.

The Equality Act 2010 doesn’t really help. It only mentions the Gender Recognition Act 2004 in one context. The references are in Schedule 3 Part 6 (Marriage) s24 and s25. Both those sections allow those conducting marriages to escape liability for gender recognition discrimination if they reasonably believe that one (or presumably both) of the intended spouses has a GRC. The precise wording is that liability is avoided if the person reasonably believes that B’s gender has become the acquired gender under the Gender Recognition Act 2004. There is another reference to the 2004 Act which is in Schedule 9, Part 3 (Other Exceptions) s18 which deals with marital status and same sex couples where one of them has a GRC.

In other words, the only reference to a gender recognition certificate in the Equality Act 2010 expressly states that mere reasonable belief in the possible possession of such a certificate is enough to avoid liability. There is no requirement to ask for one.

For the purposes of single sex services and gender discrimination, the Equality Act 2010 doesn’t repeat the reasonable belief is enough test - it says nothing. So, we go back to our original view – toilets and changing rooms and other single sex services should be for natal sex people only. Anything else is unworkable, requires an impossible ‘case by case’ analysis, potentially requires asking for GRCs, and thus carries the attendant risk of liability for disclosing the existence of such a certificate if that knowledge was acquired in an official capacity, and simply doesn’t work.
Update- we have now learned that the FWS3 case is going to the Supreme Court. In our view whatever decision is made will not affect the basic point in this article – it is legal to exclude trans women from single sex services provided for women even if they have a GRC. It is also legal to exclude trans men from services provided for me.

A short ‘news update’. we said above that if you represent to customers and staff that your toilets and changing rooms etc. are single sex when they are not your may get sued. In July 2024 news arose of at least 2 cases of NHS employed women suing their employer. In one of these cases, Hutchison and others v County Durham and Darlington NHS Foundation Trust, when the nurses complained they were allegedly told that the needed to educate themselves. We will watch this case and report back on the news section of this website in due course.