Workplace toilets - ACAS

[Hearwegoagain]

I am about to discuss with my employer their policy on workplace toilets.

The policy says transgender people may use the toilet of their acquired gender.

I am concerned about this as it changes single sex toilets into mixed sex ones, and no-one has been informed of this. I have found the legislation on workplace toilet provision, which seems pretty clear that our current single sex toilets do not meet the criteria to be 'unisex' as they have cublicles not floor to ceiling doors.

I know they have based the policy on Stonewall's guidance, so I have been searching for balanced guidance on workplace toilets which factors in the fact that people (especially women) probably prefer single sex facilities.

I really want to be balanced and I appreciate that the employer has a duty not to 'out' someone as the opposite sex (particularly if they have a GRC). My workplace does have a few unisex toilets.

However was extremely disappointed to find this guidance from ACAS:

www.acas.org.uk/media/pdf/6/7/Gender_reassignment_discrimination_Nov.pdf

It not only states that employers should have a policy that allows trans employees to use the toilets of their new gender, it does not mention at all that others may have protected characteristics which mean this is a problem for them, and it presents what in my view is an extremely unlikely example of three women physically abusing a transwoman (p27 and 28).

Anyone fancy joining me in writing to ACAS to ask them to be more balanced?

And does anyone have any neutral, balanced sources of a more sensible policy?

This needs to go on the Regulatory Capture thread.

www.mumsnet.com/Talk/womens_rights/3541908-Regulatory-capture

I know. And then I found this:

assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/484855/The_recruitment_and_retention_of_transgender_staff-_guidance_for_employers.pdf

Issued by the Government Equalities Office.

There is no mention anywhere of the impact on anyone else of a male bodied person using the women's facilities.

This has come up before, just trying to dig it out for you OP.

In the meantime this speaker is an absolute joy. There may be something in her speech for what you need too.

WPUK speech,
'Professor Clara Greed is Professor of Inclusive Urban Planning at the University of the West of England, Bristol, and a specialist in toilet provision with particular emphasis upon women's needs'

www.youtube.com/watch?v=aD92aLqgtTA

Been said before, but just insist that san bins are provided in all toilets, or are they assuming that only men are transgender?

www.hse.gov.uk/contact/faqs/toilets.htm

Here you go.
Your employer is legally obliged to provide separate cubicle facilities for men and women. If not you can report them to the health and safety executive.

The ACAS guidance does not override The Equality Act. Trans people need a GRC to use facilities for their acquired sex, because self ID is not law.

fairplayforwomen.com/changing_rooms/

Mixed sex services need to meet certain standards, and an impact assessment needs to be completed because they cannot be used by everyone.

The Stonewall advice is wrong. Provisions made for a protected group are for those who share that group's protected characteristic.

In this case, access to single-sex facilities depend on sharing the same sex that the facility is provided for. For female-only facilities, this is possible in one of two ways: born female (i.e. biologically female) and born male but gained a GRC and now considered legally female.

By giving anyone else access to female-only facilities, your employer is discriminating against females in general, and females with the protected characteristic of race, religion and disability in particular.

By unlawfully including persons who are neither legally nor biologically female and thus do not share the characteristic of a protected group, your employer is excluding those who do share that protected characteristic (actual females) from their own facilities.

What I've stated above is the situation according to the existing law, but I'm afraid it's probably not all that helpful though. Could you maybe take a copy of the recent letter from the legal experts along?

Thanks very much.

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

I will still have the conversation though.

Good luck OP.

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.)

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.

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.

This should read

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

CharlieParley

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

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!

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.

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.

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!

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/

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.

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.

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.

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.

barelove