Gender assigned toilet facilities

[dogmama1]

Hello,

I work within a restaurant and it's within a old listed building so renovation works are not an option.
We have two separate toilets. Female with 3 cubicles and sinks in the communal area, and male with 2 cubicles and 3 urinals and sinks again in the communal area.
We've recently encountered some of our male customers revisiting who now identify as female. Outwardly, they look no different - I.e clothes or appearance. Just slight name changes from their male assigned names to a female version, of course I'm not ignorant to the fact that these things take time.

However, it brought up the topic of how we handle that in regards to the toilet facilities.

Do we allow them to now access the female toilets?
We have one disabled toilet, which is inside the female bathroom and have had instances of course where a disabled gentleman has used them.

We have googled it, but it really doesn't clarify anything in plain written English.
We've had suggestions of turning the disabled toilet into a unisex toilet. But, of course this is in the female bathroom and the sinks are communal.
The same would be the case should it be a female identifying as male.

Any legal advise on how best to handle this? We don't want a discrimination lawsuit landing on our lap but their really is very little guidance on how you manage such situations. We're very inclusive and want everyone to feel welcome and taken care of.

Thank you in advance.

I think people born male should go to the male toilets and those born female should go to the ladies toilets.

Toilets can be separated by sex. So any males, no matter how they present, should go into the gents, for the privacy and dignity of your females customers, and of course, the fact they are male.

I do too.

But I do think it would be an interesting experiment to make the currently male toilets unisex and the women's stay women's. I've always wondered what the reaction would be.

Whilst I appreciate peoples opinions on the matter, I'm looking more for factual legal requirements on the subject.
Therefore to not discriminate, it's a very difficult situation to navigate without wanting a lawsuit on your hands and I don't believe it's as easy as saying to a born male who identifies as female "you are male therefore use the male bathroom". As that would be classed as discrimination.
Could end up in a very tricky situation. But there is so little guidance regarding the situation....

Minefield.

I'm sure the Equality Act lets you have single sex provision. Maybe look for info there

It would be a novel change!

You are far better assigning toilets by sex. As there are only 2 sexes.

I struggle to imagine how you could assign toilets by gender as there are hundreds of genders and you've already stated listed and no possibility for renovations.

Is there any possibility that the toilets could be changed into proper unisex toilets? Ie individual rooms with a toilet and sink.

At the moment you have 8 appliances (3 female cubicles, 2 male cubicles and 3 urinals) that would probably be enough space for 4, perhaps 5 unisex toilets.

An architect used to listed buildings would be able to advise.

My understanding is that legally you can assign by sex.

No you do not allow them to access the women's toilets. The EHRC issued new guidance last year to clarify. Essentially, keeping your toilets as women only is a proportionate means of achieving a legitimate aim which is that women deserve single sex toilets for our privacy, dignity and safety.

www.equalityhumanrights.com/en/advice-and-guidance/gender-reassignment-provisions-equality-act

In your position is probably change the men's toilet into the women's and make the women's mixed sex.

That way you have one facility either sex can use (including those needed the accessible loo) and one facility exclusively for women.

Just clean out the urinals and full then with potted plants or something. 🤷🏻

You can absolutely invoke an exception under the Equality act to preserve women only spaces even excluding transwomen. There just has to be a legitimate aim which toilet facilties would include.

I'm fairly sure the Equality commission of similar updated guidance on this.

From a practical point of view in a restaurant don’t get involved in gender, let customers decide, if there are complaints deal with them as they arise, investigate and take note.
Trying to create your own rules will get you into a lot of grief.

You've also got quite a problem with your disability provision - I know you've said you can't do renovations but you must do something, trans issues aside. Rather than refurb can you remove the urinals from the male toilets, add another cubicle and have these for females, (and be strict!), then have the existing womens turned into unisex with the disabled facility (and baby changing?) within. You'd need enlarge the cubicles to contain a sink and have floor to ceiling walls and doors.

But wouldn't need a complete refurb and cheaper than a lawsuit for lack of disabled facilities.

But you currently have the women’s as mixed sex as the disabled toilet is in there? Where is the baby changing room, male or female toilet? I’m not it matters at the moment as you are saying that it’s ok for men to go in the ladies if they are disabled? Doesn’t look like you have any policy at the moment.

This is correct. Toilets aren't anything to do with gender, they need to be separated by sex. If you have a toilet each, it's proportionate, because the only outcome is they still have a sex-segregated facility so nothing lost.
It's a legitimate aim because it preserves the privacy and dignity of both sexes.

Making a single-sex space into a mixed-sex one would need more benefit to outweigh the risks. I guess as a pp says, you could have female-only and mixed-sex but you risk the argument that you are discriminating against males.

I don't believe it's as easy as saying to a born male who identifies as female "you are male therefore use the male bathroom". As that would be classed as discrimination.

It isn't discrimination - you compare them to any other male and they are treated the same.
Not all TW identify as female, as that is a sex, but some id as "woman" which they argue is a gender (not related to the female sex). It's an indefinable concept, literally - they won't define it - so you're on shaky ground basing a policy on it. You couldn't write a policy that kept some males out but let others in (to female spaces). Far more straightforward to have them sex-based.

Yes agree with this. Where the division is on the basis of sex, a TW can't claim discrimination on that basis because they are being treated the same as all other males. Gender reassignment (not gender identity which technically isn't a protected characteristic in the EA) doesn't come into it.
I also agree with PP that your bigger problem is your disabled provision.

Get real, you are not going to supervise each person using toilet and you don’t want a big argument with a restaurant full of customers, regardless who is right or wrong.

The only sure solution is change the toilets into individual unisex cubicles plus one disabled with baby changing space.

What @Crazykatie said.

Also, if you want legal advice, get a lawyer.

Being a Listed buildings does not stop you improving the services you provide to all.
Without a plan it’s impossible to suggest but
If you don’t want to upset anyone with your decision then add non gender individual toilets. Lockable floor to ceiling walls and doors with integral whb.

Btw. You are already not making provision in accordance with the Equalities Act by not making adequate provision for the disabled.

OP
Without even making any changes you have a potential lawsuit on your hands by putting the disabled toilet in the ladies.

See Equalities Act.
Check out Buildings regs relevant ( I think ) from this coming Summer for everything else
Telephone Conservation officer at Local Govn Planning department who will advice what you can do with your listed building. Actually he’ll listen to what you want / & if you’re lucky he’ll see you on site to advice. If not just make an application.
If in doubt talk to a solicitor experienced in this area.

I saw a very neat solution last week, a hand washbasin integrated with the flush cistern lid.
I don’t care what is PC or what others want I want female only toilets, the rest can please themselves and I think most other females want the same.