Supreme Court - are single gender spaces still allowed?

I am going around in circles here. Here is what I said upthread:

The single-sex services provision in Sched 3, para 27 relates to service providers rather than work. Section 31 brings in Sched 3 for the purposes of Part 3 (Services and public functions).

There is no equivalent provision to my knowledge in Sched 9 which is the work exceptions or in Part 5 which is the main work provisions.

Again, if someone can point me to any source suggesting that the provisions for service providers can be relied on in a work context, I'll gladly change my mind. But I am not aware of any. It's always been Part 5 and the relevant schedules for work cases to my knowledge.

Can you point to where in the equality act it says SSE do not apply to services provided by an employer?

So how do you square the circle of women of certain religious backgrounds who are not permitted to share these type of facilities with males? The court has just ruled that yes, transwomen are men. This means if you have toilets that do allow males in, then these women are indirectly being discriminated against because they can't use those facilities and they have a clear legal recourse.

And yes harassment would be relevant if someone pestered to get 'special treatment' or made comments about women objecting to 'special treatment'. Anything that sets up a hostile environment for women potentially may fall into the trap of harassment too now, because legally women have the backing of the law to say that transwomen are men. Protesting might be ok, but all this business of forcing women to change venues to talk, placards which contain threats and targeting of lesbian groups etc, I'd argue have become even more contentious particularly in certain contexts (eg at work or within a university).

The SC did not make any exception for men who have had cosmetic surgery of any type.

Can you point me in the direction of any Employment Tribunal decision or court judgment that has applied Part 3 or Schedule 3 that apply to service providers in a work context? I am genuinely happy to be corrected if there are any but I am not aware of any.

Yes I know. But it relates to workplace facilities not provision of services.

Maybe it’s a sign of the times. Back in 2003 nobody could foresee how harmful transgender ideology would become. On the plus side if Croft is still relevant it presumably only applies to a vanishingly rare number of men who have had the chop and they would have to share their pvt medical information to access workplace single-sex facilities. Also I presumably this could still go up to the SC because it appears to be a weird anomalous judgment considering everything that has happened since 2003.

This predates the SC ruling.

That’s interesting thanks for sharing. I still don’t understand how a changing room policy could possibly be based on level of medical transition. How can that be practically enforced in an employment situation?

Exactly.

Where is it written in the Equality Act that there are no exceptions for single sex spaces in workplaces, please?

Provision of toilets is a service, and the employer is a service provider. There is no distinction between providing services to employees or to others.

I’ve read plenty of legal commentary suggesting that men in women’s spaces could be construed as sexual harassment. I think in the light of this ruling that will be a stronger position.

That's para 27 of Schedule 3 which as I keep repeating is only relevant to service providers.

I don’t still don’t understand why it’s relevant re a person being post op. Before the GRA entitlement to be treated as a woman was based on surgeries and treatments and passing. The GRA superseded this. We no longer take those things into account at all. You only have to have followed the Peggie case to understand this. There were no questions from NC on whether or not Upton had had surgery or how far into a medical / surgical tradition he is. Those things are irrelevant now. All that is necessary is a declaration of “I am a woman” and then whether or not that person is a GRC holder. Questions about medical transition status are now considered to be private medical information. There is no way that a court would be using this to decide a case.

And how would an employer possibly enforce such a policy anyway?

Exclusion of all males

Like I said, it’s all very flimsy, rather than the certainty this poster states it with, and will probably need to be ironed out in further cases. I also disagree that a man, regardless of anatomy, using a women’s private space where she is undressing isn’t grounds for a harassment claim.

Can you quote the relevant paragraph please if it so clear?

Ereshkigalangcleg can I ask again have you actually read the judgment?

They'll say that the transwoman was just using the toilet and they have a right to do that.

The Supreme Court ruling is quite clear that they do not.

Just to be clear, where the Supreme Court and the court of appeal conflict, the Supreme Court always wins.

Also the provision of toilets are a service to employees and one legitimate aim of providing single sex toilets is to fulfill regulatory requirements. Work toilets are covered by the Equality Act.

I disagree that it’s the supreme arbiter of whether a man can use a ladies loo. It was a remark made in a case in a time before the GRA. Many men with GRCs expected to be treated as women in the Equality Act from 2010 onwards. This ruling says they are not to be.

You're getting frustrated because some women here don’t accept your personal interpretation as the be all and end all. We’re going to have to agree to differ on how relevant the remark was in Croft v Royal Mail to men with GRCs now.

There's just no way that judges are going to say that a post-op transwomen using the ladies loos at work is harassment unfortunately.

They'll say that the transwoman was just using the toilet and they have a right to do that.

They'll say that, even if you find their presence distressing, this is not reasonable (this is part of the test for harassment under s26(4)(c)).

Let's not forget that the Courts have also held that transwomen can be put in women's prisons despite this leading to a greater risk of sexual assault*, and that passing post-op transwomen can carry out intimate searches. They will take the FWS into account where relevant but it's naive to think that they are going to suddenly backtrack on absolutely every position they have taken.

*This may change following the FWS judgment but I am just trying to demonstrate that the Courts rarely balance rights in the way that we would like them to.

It's based on the Court of Appeal's judgment in Croft. They held that the fact that Croft was still anatomically male and had not completed transition was more relevant than Croft's internal sense of identity, but that they would eventually gain a right to use the women's loos once transition was complete.

This is going to sound snarky but have you read Croft? I think it's a bit ridiculous to dismiss someone's interpretation of a judgment as "flimsy" if you haven't read that judgment.

I’ve long thought that women are going to need to bring harassment claims. This is one of Sandie Peggie’s claims against Upton/Fife.