Workplace toilets - ACAS

Herewegoagain AFAIK, public sector does, as well as all organisations who deliver some kind of service to the public.

Other employers are supposed to have equality policies in place and are advised to check if proposed policy changes (workplace changes like the toilets or working hours) affect employees with a protected characteristic.

The reason why most employers do this is because we are all protected under the EqA and if we are discriminated against, we can initiate precceedings to pursue the issue. Not considering the needs and rights of women when trans policies are implemented is a clear demonstration of discrimination against women. We just have to argue our case. ("just" ha!)

The big problem we have is that where workers are unionised, the unions are supposed to help us fight this, but they have unbeknownst to us been captured.

GC unionists are now building a network to tackle this madness within the unions, which has almost entirely bypassed female union members and is almost entirely rejected by those female members when they are become aware.

Unfortunately, many GC union members have often been fighting this battle in an increasingly hostile work and union environment and are extremely cautious now, so this is an understandably careful and therefore slow process.

Greenkit no problem with those (aside hygiene issues if you're unlucky).

Unisex facilities are lawful and perfectly fine. The problem lies with turning facilities that several people use at the same time from the standard and required single-sex to mixed-sex facilities.

We have 2 toilets available, they are unisex, sanitary provision in both.

Its basically a large room, with toilet, sink and sanitary

Whats the problem?

Thanks Charley, that’s really helpful.

Interesting that the EHRC link doesn’t mention GRCs at all. Almost as though providers shouldn’t rely on that as burden of proof for a trans person to access a service or space.

ChattyLion not quite. Employers have to ensure their employees are not discriminated against. Single-sex toilets have long been identified as a requirement for women to be able to fully participate, hence they are a workplace requirement above a certain number of employees.

I had a chat not so long ago with a longstanding unionist and women's rights campaigner whose own promotion was denied for seven years because there was no female toilet where she would have then worked. This was some thirty years ago and a clear case of discrimination on the basis of sex.

There are in fact rules and regulations that require employers who provide multi-entry facilities to ensure these are single-sex (i.e. usual room with several cubicles and sinks).

So, never forget that the existing rules stipulate female-only must be provided unless facilities are unisex (i.e. single entry, self-enclosed cubicle with sink).

Single-sex exemptions are already invoked in providing these. However, after about five to nine years of being wrongly advised as to the Equality Act (this stems from TRA disappointment at the GRA being for transsexuals only with the EqA then continuing the theme), employers have increasingly adopted policies allowing non-GRC-males access.

Now the reason why it is important to remember that established, existing policy is female only is because any proposals for a change in policy must evaluate the impact on protected groups. As we now know this is done via Equality Impact Assessments.

My friend has been leading one of them for more than a year now (NHS). It involved a questionnaire, several brochures setting out the policy proposals, over 500 responses from the public, a large number of public meetings involving protected groups, communities and individuals and private consultations with over a thousand individuals from the major user groups. They're still nowhere near finished. But that is what is supposed to happen. As with all of these processes they have learned about impacts they had not anticipated and are now working on finding compromise (within the usual financial restraints).

So EQIAs are nothing new or unusual, they are a bog standard way of looking at how planned changes will affect people. Few employers will have to go through such an extensive, protracted process, but go through it they must becausr no employer is allowed to discriminate against protected groups. The issue is that we must now show them that that is what they are doing and remind them of due diligence and due process.

If you feel safe to do so.

We have unisex anyway, no big deal

And where facilities are single sex, trans people can use the services provided for their sex. As they have since women's public facilities were created.

You're quite right, of course, it's no big deal.

No big deal to you. A big deal to someone who can't use it for whatever reason.
The irony is that people who claim to be inclusive are the most exclusive group of all.

But is it even relevant. Contrary to what you may read here, there aren't many transgender people in the workplace, and bigger employers eg where my friend works with a trans man made specific provision to use a separate;with sink included) toilet (disabled but no one ever used it before). We have unisex anyway, no big deal

barelove

So Charley (and thank you) then if I have understood rightly, it rests on the employer to invoke these exemptions if they want single-sex toilet users to not have to be joined by the opposite sex in there?

If the employer chooses not to invoke the exemption after receiving complaints of usage by staff of the opposite sex (or, realistically the toilet users don’t have the confidence in the employer to complain in the first place) then there is nothing more that the toilet user can do?

The GRC thing seems like a red herring because there’s no way as a workplace toilet user that you’ll ever know if a colleague has a GRC or not.

So effectively we already have self ID at work unless an employer wishes to be actively gender critical or at least responsive to its own staff’s complaints which of course many employers won’t be.

(And this is all regardless of whether there are unisex/gender neutral toilets already provided at that workplace.)

TLDR; Men can’t be stopped from using the women’s unless the employer wants to stop them. Women’s wants are irrelevant.

Point out that if they implement something that which is against the law, it only takes one possibly vindictive person to sue them and they will be screwed. That tends to focus the mind.

This is interesting.

www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-discrimination

The EA was never for the transgender umbrella but rather for transsexual people. The vast majority who rely on the EA are not entitled to even be using it.

I just don't hold out much hope if their policy is based on the guidance from (apparently) reputable sources...

Guidance doesn't trump law, no matter who wrote the guidance.

Also, remember the letter from lawyers:

"The Equality Act 2010 provides trans people with the important and necessary protection from discrimination on the basis of gender re-assignment. This is not the same as a general right of access to single sex spaces and services in all circumstances. It is established in case law that the comparator for a transgender person claiming discrimination in relation to gender re-assignment is not the sex which they are seeking transition to but that which they are seeking transition from."

forwomen.scot/30/03/2019/tie-letter-legal-response/

Read this thread at 22.40 then went off to write to acas using their online complaints form.

Three hours later and I'm back, after having researched and written a necessarily long but very clear complaint. I'm sure someone else could've been more succinct but it's late and I always become a bit obsessive in the early hours!

The court found in favour of Goodwin. Crucially though, the court did so only because post-op transsexuals were such a small, well-defined group. This case was a direct factor in the GRA being established, with the exact same reasoning as to the rarity of transsexuals.

Yes, exactly.

Datun Yeah, that's a bit of a conundrum, isn't it? And why we went to see our MP on IWD to ask Penny Mordaunt to issue much clearer guidance.

It's a misconception btw that one is not allowed to ask to see a GRC. However, this still doesn't help. What would help is the reasonable belief clause that Church of England etc have, whereby - regardless of birth certificate - a minister (or whatever) of a church that does not permit same-sex marriage can refuse to marry a couple where the minister has the reasonable belief that bride or groom has undergone gender reassignment.

Astonishing that there's such a practical, pragmatic exemption for in my opinion homophobic purposes, but a nearly unworkable one for the purpose of protecting women.

A large number of businesses and organisations are allowed to ask to see a person's birth certificate though. Employers are included in this list.

So in a work setting, it would be very simple to invoke a legal-sex-based exemption - no birth certificate stating female, no access. A biological-sex-based exemption is more difficult unless one is allowed to use the reasonable-belief-rule. However, under the current system, we're talking 3000 males only who are legally female, so I'd say that is workable.

And should female employees then complain about male GRC-holders using their facilities, the employer has the option to invoke a biological-sex-based exemption, no document check needed as the identity of everyone would be well known. That would require some clear work place rules on respecting female boundaries of course.

In an ideal world, employers would provide female-only and male-only facilities with disabled provisions and unisex facilities for all those who do not wish to use the facilities of their own sex.

Anyway, the GRA created a mess by solving this problem in a way that is detrimental to women. As everything about the GRC is confidential and one is not allowed to share information about this, a GRC on its own as proof without falsifying a historic document like a birth certificate would have been far better.

But of course it would not have satisfied the original complaint Christine Goodwin made in that pivotal court case (Goodwin vs United Kingdom, 2002) - that this post-op transsexual was essentially being outed by having to keep the same National Insurance number and via any identity checks.

The court found in favour of Goodwin. Crucially though, the court did so only because post-op transsexuals were such a small, well-defined group. This case was a direct factor in the GRA being established, with the exact same reasoning as to the rarity of transsexuals.

I wrote to ACAS about this last year and got an extremely disappointing reply. I'll dig it out for you tomorrow.

Try them again though!

CharlieParley

How does having a GRC be a condition of access, when you're not allowed to ask to see one?

This should read

...there are only 3000 male GRC-holders in the UK of whom 2100 are post-op...

ChattyLion Please note that if an employer or organisation or service provider does not invoke the sex-based exemption solely on the basis of biological sex, then GRC-holders do have the right to access female-only spaces.

I strongly believe that this goes completely against the rights of females to privacy, dignity and safety when it comes to spaces where we are vulnerable or in a state of undress, but as there are only 3000 males in the UK of whom 2100 are post-op, employers and organisations and service providers may find it easier to offer single-sex provisions on the basis of legal sex. They can then say that they are fully inclusive within the confines of the law. For all the good it will do them once the TRAs get wind of it. The latter only accept a full surrender without compromise or exception.

they have the right to alternative arrangements just for them, but not the right to access female-only facilities.

Thank you this is really helpful re GRC holders.

Might be useful to mention that the Equalities and Human Rights Commission had to change its guidance on the issue last year and

a) published a statement on their website saying the comparator class for sex discrimination for trans-identifying males without a GRC are all other males (excluding males from female-only facilities is discrimination on the basis of their sex, but is lawful if the reason is legitimate and proportionate).

That means they can't claim that they are being treated less favourably than females when they are excluded from female-only facilities even though they identify as female because they are not considered female in the eyes of the law (neither biologically nor legally).

Gender reassignment doesn't apply when it comes to accessing the facilities of the opposite sex. It only applies when it comes to facilities of their own sex, that is they cannot be excluded from male-only facilities because they now identify as trans. They will always have the right to access male-only facilities because they will always remain biologically male.

And they cannot be forced to use male-only facilities because they identify as trans either, thus they have the right to alternative arrangements just for them, but not the right to access female-only facilities.

b) quietly deleted a lot of their advice that said those identifying as trans must always be treated as their preferred gender and given access to facilities of their preferred gender. And advice saying they must never be excluded.

Now the edited advice says nothing on the matter, but does say that GRC-holders should not normally be excluded from opposite sex provisions but can.

So if your employer was advised by a reputable organisation, I would respectfully point out that the regulator - from whom said respected organisation got their advice in turn - made a mistake and so advised them incorrectly but that the EHRC rectified the problem in the middle of 2018 but that most organisations would not be aware of this. (This was mostly thanks to the work done by Fairplay for Women but probably other campaigners, too.)