HR tell trans identified person to use work toilets that match biological sex. Person refuses. Colleagues complain about their presence in incorrect toilets to HR. What's the legal position of all parties?

Document T

The OP on that Reddit thread hasn’t posted any update, so I’m assuming HR didn’t leave them much wiggle room.

@OpheliaWitchoftheWoods
Apologies - this post should have quoted @MyAmpleSheep's post at 20:25.
You must have been baffled!

Yes, the problem is always going to be cost and retrofitting private, mixed sex spaces into unsuitable sites. Is it worth it in terms of risk?
If we’re going to be adding to provision, I think I may have told you my ‘ideal’ would be single sex accessible toilets (with door gaps!) so disabled people get included in the benefits of single sex toilets. It would avoid the problems of misuse (drugs, sex, dirt) in accessible toilets and a parent with a pushchair or child can use the space too - with it being safer for the child. The mixed sex accessible toilet would be the only one to keep extra supervision on then.
https://www.bbc.co.uk/news/articles/cqjvnkzgr1no.amp

I think we have exchanged posts on this before.

I absolutely agree with you that stall type single sex toilets is the ideal. It is what I am proposing for the majority of toilets.

However, from an employers perspective having, in addition to SS stall toilets, a Unisex/GN toilet solves the legal risk of discrimination claims on the basis of gender reassignment.

On the HSE website they have an example of a reasonable adjustment for a toilet alteration as putting a bin in the mens for sanitary purposes for a man with prostate cancer.

I think the millions of people with invisible disabilities such as diabetes, epilepsy, general frailty and heart conditions, offices and other venues should be able to have safe toilets with the door gap at the bottom. That means single sex designs. Having researched safety for so many years I believe this option should be available unless it’s a one-toilet facility such as in a cafe that has more supervision and a greater turn-over by default.

I didn't and never have suggested only unisex available. It's just obvious and reasonable to anyone who isn't on a crusade that building should have SOME unisex facilities AS WELL AS single sex facilities. Anyone who really wants to use a multi cubicle room can do so. Anyone whose need to dissociate from their birth sex stops them from going into the single sex space of their birth sex still can still have somewhere to go. I don't care that they don't want to do that and I really don't care that you'd rather use the single sex rooms that I haven't suggested get removed and which are already provided. I do care to ensure that people who believe in the magic gender pixie should not have a leg to stand on in claiming discrimination when we assert our rights to single sex spaces, which they could succeed in without reasonable access to facilities that they can access without abandoning their beliefs. I disagree with their beliefs but I will defend their right to hold those beliefs in a way that doesn't threated the rights of others because only by iron-cladding those rights which provide reasonable access without threatening women's rights can force the fighters to admit that the only thing they really actually want is the right to threaten women's rights. That is when progress will be made.

Disabled people campaigned for decades to get accessible toilets because they need them, not because they prefer them or because using the non-adapted toilets would cause them 'distress'.

Handing over the accessible toilets as some kind of compromise or consolation prize for able-bodied transpeople to use because they refuse to use the toilet designated for them is not an acceptable solution.

But it's hard to tell from words on a screen, so I apologise if you were being ironic

@Keeptoiletssafe

From where do we infer the need for individual toilets to be “sound resistant”? I’m not sure that’s quite right.

There is a health, safety and welfare aspect to this design though (which is what legislation and building regs are for). This is the reasons we have the toilet designs that are single sex with door gaps.

Universal toilets you are describing have to be their own room, be sound resistant and private. Advantages: no one can hear you fart and you can clean things privately in the sink. Disadvantages: no one can hear you scream, or see you if you have collapsed (compared to toilets with doorgaps), they can’t be cleaned or ventilated so well as so they are scientifically proven to hold more pathogens, they are rife for hidden cameras, sex and drug use are more likely. Hidden cameras have been found in schools, hospitals, offices etc. Sex in toilets is surprisingly common so there’s a specific clause added in the Sexual Offences Act to prohibit it but that doesn’t stop people - it does mean it’s more likely to be where people can get away with it. Also more common than most people realise is that people have medical emergencies in toilets. The longest I have heard about this year is 6 days to be found in busy council offices. The universal design needs more components like ventilation and alarms, they cost more per toilet and people are in there for longer. All the disadvantages are mostly disadvantages to everyone but sexual assaults are more likely to women and children. Those disadvantages are barriers to a healthy and safe workplace. It’s also a pain when there’s a fire alarm. Checking all these loos individually takes a long time and a lot have to be fire doors.

If you go down this route, please be aware that the universal toilets need more supervision and maintenance.

Meanwhile, Scotland is ruled by a roaming miasma of smug and indifference.

Separation of powers in the UK is by convention only.
And?
The judiciary, the legislature and the executive exist as branches - though the executive controls the legislature in practice.
Parliament is not a court, nor is Parliament the King.
The House of Lords no longer functions as a court and has not done for some time.

Parliament cannot overrule the SC decision. Nor can the government. Only a new piece of legislation duly passed can change the law as clarified by the SC.

Also - the phrase "the will of Parliament" has a technical legal meaning which the original poster appeared not to understand.

Separation of powers in the UK is by convention only. Actually all power vests in the King. The King has a government (“His Majesty’s Government”) and ministers, to function as an executive, and a parliament to write his laws and courts to interpret those laws. There’s a reason every judge sits under the royal arms - they’re representatives of the Crown.

Not so long ago the House of Lords did sit as a court, then it devolved its judicial function to the Appellate Committee of the house - the Law Lords.

Then parliament (by the King’s will, of course) passed that function off to a new court - the Supreme Court. but it still exercises the powers of the King.

the King can overrule the Supreme Court. But he’s not going to.

What do you think the Supreme Court is if not a court of law?

You're either grossly misinformed or deliberately spreading disinformation.

I am well aware that the US has a different system of government and legal system.

My post was about the system that pertains here. I was explaining to a pp (among other things) that the SC is indeed the highest court in the land and Parliament is not a court and cannot simply "overrule" SC decisions. It has to pass new law.

Edited for clarity

@WandaSiri the separation of powers is very different in the US. Each branch has distinct powers but also relies on the others to function effectively, preventing any one branch from becoming too powerful. This is achieved through the checks and balances written into the Constitution.

The big difference is it is possible to have a President of one party, while the other party can have the majority in both the House and the Senate. In the UK system the leader of the majority party becomes Prime Minister, but if they lose their majority the government collapses and there is an election. For example during Obama's Presidency from Jan 2015 - Jan 2017 the Republicans had total control of Congress - a majority in both the House and Senate.

It is often the case in the US that there is divided government where at least one House has a majority of the opposition party.

Of course, if I was wrong, I could be disproved.

I'm not going to go over it again.
You are under fundamental misapprehensions.

It's only confused if you believe there is some sort of fundamental power behind parliament in the UK.

"Separation of powers" is not a concept that features in the UKs constitution. And even if it did (which it doesn't as the UK doesn't have a single constitution) then it would still be below the concept that parliament is supreme.

All UK constitutional debate, discussion and discourse begins with the fact that parliament is supreme. Something that was proven to the world when it decided that a King was a head too tall for this world.

All else is convention and precedent.

So I say again, if you want a court higher than the Supreme Court, then look no further than parliament. Who could - if they so voted - abolish the Supreme Court in a trice.

It's true Blackwood et al described the makeup of the English system and noted the separation of powers that were formally incorporated into the US constitution. But there is nothing but good chap agreement in the UK about such a concept.

Anyway, in this case, a company obeying the law - ensuring single sex spaces are kept that way - would be immune to criminal or civil action.

I'm no lawyer, but I know the history bits.

(The trail of Charles I sometimes pops up in US court cases. amusingly enough)

This is a little confused.

The doctrine of the separation of powers tells us that there are three branches - the judiciary, the legislature and the executive.

The Supreme Court is the highest court in the land. Parliament is the legislature and is not part of the judicial system. As a legislative body, it can change the law, but the SC has the last word on what the law currently is at any given time. The Supreme Court cannot change the law, only interpret it. It interprets according to the will of Parliament, which is a technical legal term which does not just equate to the desires of current or past MPs and certainly not of the current government - the third branch of power, known as the executive. The government is also subject to the laws which Parliament passes. We say that Parliament is sovereign because it can pass or repeal any law it likes, not because the government can ignore any law if it chooses. Also on sovereignty, the saying "Parliament cannot bind itself" means that no law is non-repealable or amendable, even if the law itself says that.

Our judiciary is independent, whereas the legislature and executive are closely entwined for obvious reasons.

If the government wants to change the law, they have to submit a bill to Parliament and get it passed in both houses.

Also, if they don’t take steps to enforce, they could face a harassment claim by the women involved and he could be added as a respondent just like Dr Upton.

As an employee, ignoring a HR request by going in the toilets anyway is clearly an immature and inappropriate way to react. They had a problem they should have raised it. That would likely be looked down on at any employment tribunal.

More than that. This person is legally male. He has been using female only facilities and the women he works with have complained to management that his presence in the female only facility is causing them harassment, alarm and distress.

Management speak to him and tell him that he is not allowed to access the female only facilities. His presence is causing his female colleagues to feel harassment, alarm and distress.

This man says that, despite knowing the distress he is causing and despite knowing that he is not allowed to use the female only facilities and despite being expressly told by HR that he is not to use them, declares that he is going to continue to harass, alarm and distress his female colleagues by using the female only facility.

That's pretty damning and I don't think the defence of 'but I want to' is going to stand up in any courtroom.

Incorrect. You've got this upside down.

It is the law. It's been the law for years but the guidance was wrong.

And people are having a meltdown about it.

I said "quite easily" to be a tad goady.

If the TRAs are so convinced of their case, then why not get parliament to address it ?

Because not only is it a deeply flawed case ... I suspect the next time parliament revisit this debate the laws will be very unambiguous. Especially when Nigel Farage is a Prime Minister.