The Great Toilet Debate – what is it and how did we get here?
Supreme Court ruling on definition of ‘woman’
The recent ruling by the Supreme Court has hit headlines in a big way across the UK, with many businesses (and individuals) asking two questions: What does this mean? And what do I need to do now?
The issues surrounding gender theory and transgender rights are complex and ever evolving, so unfortunately, this article won’t answer all the questions or provide any definitive right or wrong answers. Instead, we’ve focused on interpreting the legislation and providing practical, commercial advice on steps you can take in the workplace to ensure compliance with employment law while offering appropriate support to employees.
For those unfamiliar with the ruling or the topic in general, we’ll provide some background information on the legal proceedings. If legal updates aren’t your cup of tea, feel free to skip ahead to the actions and FAQ section.
Background Information – a deep dive into the legal proceedings
The recent ruling by the Supreme Court stems from a legal challenge between the Scottish government and the campaign group For Women Scotland which started in 2017. The legal issue centred around the Scottish parliament passing a bill which allowed transgender women to be classified as women for gender reporting purposes if they held a gender recognition certificate (GRC). A GRC is a legal document in the UK that allows transgender people to have their gender recognised officially, including on legal documents such as their birth certificate or marriage licence.
Gender recognition certificates have been available since the Gender Recognition Act was introduced in 2004, after the European Court of Human Rights issued two judgements in 2002 that found the UK was breaching human rights by failing to legally recognise transgender people’s acquired gender.
The Scottish government believed that they were complying with the Equality Act by including transwomen in their definition of women, as the Equality Act provides protection for people have the characteristic of gender reassignment. They believed that failing to recognise a transperson under their legally recognised gender, could amount to less favourable treatment. However, For Women Scotland disagreed with this and argued only biological women should be included in the definition of ‘women’ under the Equality Act, as the act referred to ‘biological sex’, not gender.
Side note – Sex is usually determined by the biological anatomy we have (such as chromosomes, hormones and reproductive anatomy), whereas ‘gender’ typically refers to socially constructed roles, behaviours and identity, although there is some debate on these definitions.
For Women Scotland sought a legal review of the definition of women under the Equality Act. This was tried in several courts in Scotland with the majority of rulings finding in favour of the Scottish Government. However, an amendment to the original act was introduced in 2022 to remove the definition of ‘women’ and instead refer to the Equality Act’s definition. For Women Scotland believed that the definition of women should be based on biological sex, and that a definition based on gender was unworkable and impractical. They believed that the consequence of the ruling could be the removal of biological women from public boards. The case was then escalated to the Supreme Court.
The Supreme Court Ruling
The Supreme Court found that the terms ‘man’, ‘women’ and ‘sex’ in the Equality Act were always intended to refer to ‘biological sex’ and not ‘certified sex’, and that any other definition would cause the act to become incoherent and impractical.
Based on this it found that the Scottish Governments guidance on including transwomen with a GRC was incorrect.
In a significant ruling for employers, the Court also stated that under this definition trans women (those born biologically male) could be excluded from female only spaces such as changing rooms and homeless shelters. It also stated that trans men (those born biologically female) could be excluded from female spaces in the same manner as trans women, because their gender reassignment process had given them a masculine appearance.
Finally, the ruling acknowledged that trans people were still protected by the Equality Act under the characteristic of gender reassignment and recognised the struggle that many trans people face in their lives. They specified that this ruling is relevant to the Equality Act only and may not apply in other contexts.
What does this mean for UK businesses?
A question that many of us are asking right now: How did we get from the issue of gender reporting in Scotland, to all this talk about toilets?
The simple answer is that while this complicated legal process started because of gender reporting, it ended up challenging and re-defining a section of the Equality Act that has historically been used to make decisions about a number of different issues, including toilets.
Right now, we are still waiting for further clarification from the UK Government on what this might mean long term. However, in the meantime the Supreme Court has issued an ‘interim update’ to offer guidelines for workplaces until the full guidance is issued in June.
The interim guidance states the following: (the full guidance is linked here)
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 cases, trans women (biological men) may not be allowed to use men’s facilities, and trans men (biological women) may not be permitted to use women’s facilities.
- 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.
This means that where single sex spaces have been provided, an employer should not allow a trans person to use the facility aligned to the sex that they identify.
So, what is a single sex space?
A single-sex space refers to a facility or area that is legally designated for use by individuals of only one biological sex for reasons of privacy, safety, or dignity.
Examples of single-sex spaces include:
- Toilets and washrooms
- Changing rooms
- Showers
- Homeless shelters
- Single-sex dormitories in accommodation
Workplaces must now consider how to accommodate trans individuals by providing alternative facilities, such as mixed-sex or individual, lockable rooms.
Challenges
As this ruling is brand new, we are still waiting for the full guidance. However, we are already seeing some problems with the application of the ruling:
Problems with the application of the ruling
- The ruling does not mention how intersex people are regarded under the Equality Act. Although this is a relatively rare situation, intersex individuals may be unsure where they stand under the ruling.
- A consequence of the ruling could be that trans people are excluded from BOTH male and female spaces. Gender reassignment is still a protected characteristic, and a criticism of the interim guidance is that it does not clearly advise businesses on how to avoid discrimination against trans people.
- There is no guidance on how employers or business owners should assess who is biologically male or female. A transperson with a gender recognition certificate may hold a birth certificate, passport or other forms of ID in their acquired gender, making it difficult for employers to ‘prove’ biological gender.
- It is unlikely that this is the final word on the issue, as campaign groups have already publicly stated that they will challenge the ruling at the European Court of Human Rights.
- The ruling inevitably places a financial and legal burden on employers who may have to commit time and resources to upholding the ruling, without clear or comprehensive guidance on the legal implications. This will only be exasperated if the European Court of Human Rights contradicts the ruling in the coming years.
Actions
- Identify any single sex spaces. If you only have toilets with lockable doors, could these be gender neutral? Do they need to be gender specific?
- If you have clearly defined male or female toilets, i.e. ones that have urinals in them, consider whether a disabled bathroom could be re-labelled as an inclusive space.
- Where possible, provide changing rooms or showers as individual spaces with lockable doors, that can be used by anyone.
- If you do have single sex spaces, start to consider how you will offer alternative facilitates and prepare to communicate this with employees.
- Involve your staff representatives in conversations about any planned changes. This supports open communication, strengthens employee relations, and shows staff that their views are being listened to.
- Consider whether any policies need updating and how you will publish guidance to employees on topics such as which facilities they should use and how gender reporting will be managed.
- Ensure that no one is excluded from all facilities, and that trans people have a comfortable, accessible and safe working environment.
- Consider offering welfare support or signposting to an EAP for parties that may have been affected by the news or are struggling with the changes.
FAQs
How can it be appealed in an EU court, now that the UK has left the European Union?
What is the consequence of not complying with the employment legislation?
Failure to comply with employment legislation, particularly concerning equality and non-discrimination laws, can result in legal action from employees, including employment tribunal claims.
Where is the line between the right to express your beliefs, and offending (or worse, harassing) others with those views?
Both views—those advocating for transgender rights and those holding gender-critical beliefs—are likely to be protected under the Equality Act 2010. However, expression of these beliefs should not create a hostile, intimidating, degrading, or offensive environment. This could lead to claims of harassment.
For example, an employee may express privately to their manager that they are uncomfortable with sharing single-sex spaces with a transgender person due to their beliefs. However, they do not have the right to confront a transgender individual in a shared space and demand that they leave based on their personal beliefs.
Similarly, an employee has the right to express support for transgender rights and equality in informal discussions. However, they should avoid labelling or disparaging colleagues with opposing views (such as using terms like "TERF" or other derogatory terms) as this may cross the line into harassment, which could result in potential legal consequences for both the individual and the employer.
How do I talk to employees about this very sensitive topic?
Approach sensitive topics with empathy and respect. Foster a safe environment for employees to ask questions and express concerns and consider providing training on inclusion and respect. Clear resources and open communication are essential.
How Jaluch can help
Change can be difficult for everyone, particularly when the topic is sensitive. If you want support navigating these changes or helping employees understand how they can act with respect in the workplace, talk to us about HR support or training or use the links below to explore some of our courses:
- Respect in the workplace
- Diversity and inclusion
- Effective staff representation (reps can support with communication)
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Disclaimer: The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.