Single sex spaces in the workplace - any lawyers about?

[SadCister]

Hi All, I have a legal question about transgender people and

You may be aware that the Workplace (Health, Safety and Welfare) Regulations 1992, regulation 20(c) require that "separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside".

However, a lot of employers are now saying that trans people can use the facilities "of their preferred gender".

My question is, if a transwoman is allowed to use the "ladies" toilets, surely the employer is then breaking the law by not providing separate facilities for men and women?? Surely if the transwoman is allowed to use the "ladies", then they are no longer single sex, and there should be another, single-sex facility provided for females?

sorry, first sentence missed the word "bathrooms"

Depends whether a cubicle is defined as a room, i think.

it's not clear... how would you know?

it's not clear... how would you know?

Pretty sure lockable cubicles are considered separate facilities, but I haven't looked very far for any case law.

However Schedule 1 Part 1 is interesting:

4 In workplaces where females work, there shall be at least one suitable water closet for use by females only for every 25 females.

5 In workplaces where males work, there shall be at least one suitable water closet for use by males only for every 25 males.

6 In calculating the number of males or females who work in any workplace for the purposes of this Part of this Schedule, any number not itself divisible by 25 without fraction or remainder shall be treated as the next number higher than it which is so divisible.

I think the difference between a lockable separate room and a typical row of cubicles is clear. I believe that they are breaking the law in not providing single sex facilities, but good luck with your HR department if they're anything like mine.

@Ofew that's interesting, so they're definitely breaking that law by having mixed facilities

Yes, the Workplace (Health, Safety and Welfare) Regulations 1992 regulation 20(c) is on the face of it inconsistent with the Equality Act. It would presumably come down to how women is defined by the courts for the purpose of the Regulations.

In the case of Croft v Royal Mail [2003] EWCA Civ 1045 this is inconsistency was brought up by counsel for the Royal Mail as a defence to the Royal Mail's purported discrimination in not allowing a transsexual woman to use the women's toilet. It did not fly.

New government guidance in relation to "gender segregation" in schools:
assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/719398/Gender-separation-guidance.pdf

Para 13 seems very clear about schools having to provide sex segregated toilet and washing facilities for children. But obviously this is schools, not adult workplaces.

The Court of Appeal have dismissed Ms Croft's appeal against the EAT decision (Croft v Royal Mail [2003] IRLR 592 EWCA Civ 1045). However the Court of Appeal's reason for finding against Ms Croft is different to the EAT. The EAT's reasoning was straightforward - that legally a pre-operative male to female transsexual was a man and therefore there was no discrimination in preventing Ms Croft from using a female toilet.

Sorry rest of it. Of course EQ Act is 2010 so after this.
The Court of Appeal approached the issues by considering section 82 of the Sex Discrimination Act 1975 as amended, which provides that the category of persons who are not to be discriminated against on grounds of gender reassignment includes persons at all stages of gender reassignment under medical supervision. The Court of Appeal accepted that this includes pre-operative transsexuals. However it did not follow that, when considering less favourable treatment on grounds of gender reassignment, that all such persons are immediately entitled to be treated as members of the sex to which they aspire. Thus the court said that merely being a pre-operative male to female transsexual would not enable a person to use a female toilet. On the other hand, permanently refusing someone the use of female toilets, even though they have not undergone the final operation could amount to discrimination.

The court said that employers must consider all the circumstances of each individual case and make a judgment as to when a pre-operative male to female transsexual can use the female toilet. Employers should have regard to their other employees and also the circumstance of the transsexual person and at what stage she has reached in the medical treatment including her own assessment and presentation. However, the employer is not bound by the transsexual's own self-definition - but it is one of the considerations that should be taken into account.

The existing law doesn't have enough clarity on what is 'male and female', until recently thought to be very simple. The Croft v Royal Mail also seems to have included places where members change (communally) which would have negated any kind of individual space argument.