Workplace advice needed!

[LockdownLisa]

I've been a GC feminist for a while now and have sometimes wondered how my workplace would deal with having a TW in our workplace. And I think I'm about to find out.

A fairly new (male) member of staff knows I'm GC - he was reading a book in the staff room a few weeks ago about trans people and we had a chat about it where I politely expressed my views.

In the last few days, after overhearing a few conversations he's had with two other members of staff (he knew I was in earshot), I'm pretty sure he's going to come out as trans soon. We get on well, but given that he knows my views, I can understand why he didn't feel comfortable telling me directly.

I'm not sure what to do now. I have zero issue with him presenting as a woman, and would call him by a new name if that's what he wanted, but the main issue is that we only have ladies and men's toilets, i.e. no fully contained loo and sink, so not even a 'disabled' toilet (sorry if that's not the correct terminology). I work for the NHS, but not in a hospital - it's actually an ex-warehouse. I've always been surprised about the lack of disabled loos, though.

I had hoped he would continue to just use the men's, but after overhearing a conversation today, I don't think that's the case.

I'm torn between raising this with a manager, something along the lines of 'I believe somebody is going to come out as trans soon, please can you find out in advance what would happen with the loos' and just minding my own business. My main concern with the latter is that they would have no idea of the law and just say 'yeah, use the ladies, that's fine' and we'd all just be presented with a fait accompli.

Am I correct in my belief that women are legally entitled to single sex loos? Anything else I should think about? I like this man and have no wish to make his life difficult, I just don't want him in our loos!!

Our Trust works with Stonewall, not sure if that will make any difference.

It sounds like the answer here would be for the male toilet to be designated as mixed gender so that any transwomen would be comfortable using it and for the other male colleagues to be asked to make an effort to ensure your colleague feels comfortable in that toilet. But lets face it we all know that wont be the solution that is implemented.

You could pre-empt things a little by suggesting that the men’s toilets be changed to mixed gender so that they are more welcoming for trans people and provide the information about the need for women to have fully contained loo and sink so sadly they can’t convert the ladies toilets to be mixed sex and make sure they are clear on the difference.

I think you're right; I really can't imagine the first option flying!!

Re your 2nd paragraph, I don't think I really understand it? Are you saying that women should already have a fully contained loo and sink?

I really really wouldn't make any comments about any specific person or even hint at anything about any real-life situation. Their personal life is private at the moment.
If you were going to bring it up you would need to do it in a general way that was about all people or a genuinely theoretical case.
I wonder if your colleague may be almost testing you to see what you do and if you come out with anything, seemingly unprompted.

There is only a legal right to a single sex space if there is a legitimate purpose - per the equality act. You feeling uncomfortable with a transwoman is not likely to be a legitimate purpose.

You can believe TWANW; that is protected, but if you start acting on that in a way against a protected characteristic of gender reassignment there may be consequences.

Unless this person is a risk where you can claim a legitimate purpose, then there is little that can be done.

But hey - give them a chance perhaps? Coming out at work and transitioning must be a difficult thing.

You feeling uncomfortable with a transwoman is not likely to be a legitimate purpose

This is incorrect, the OP requiring a single sex toilet facility is a legitimate purpose and the law supports this.

The workplace can provide individual cubicles which are fully contained and hold wash basin, & sanitary bin if the only provision is a mixed sex toilet facility.

What are the legitimate purposes for single sex toilets?

@MishyJDI

There is only a legal right to a single sex space if there is a legitimate purpose - per the equality act. You feeling uncomfortable with a transwoman is not likely to be a legitimate purpose.

You can believe TWANW; that is protected, but if you start acting on that in a way against a protected characteristic of gender reassignment there may be consequences.

Unless this person is a risk where you can claim a legitimate purpose, then there is little that can be done.

But hey - give them a chance perhaps? Coming out at work and transitioning must be a difficult thing.

This information is incorrect.

There is a legitimate purpose for women’s single sex toilets: The case for separate sex toilets is well established; based on hygiene, security, dignity, privacy and deterrence of anti-social behaviour and crime.

I’m sure someone cleverer than me will be along in a bit with the appropriate legislation to quote.

Given this person is currently presenting as a male, it would seem odd that all of a sudden they’d feel they simply must use the women’s loos.

You feeling uncomfortable with a transwoman is not likely to be a legitimate purpose.

The Equality Act specifically mentions situations where a member of one sex may reasonably object to the presence of a member of the opposite sex. As the rest our laws both recognise a difference of the sexes and building regulations specify that multi-entry toilets must be single-sex toilets although fully-enclosed single-entry ones can be provided for the use of both sexes, the OP has every right to expect a female-only toilet.

"Exceptionality’ in law is a term of art, albeit one about which there has been much litigation as to meaning. Part 7 of Schedule 3 to the Equality Act 2010 sets out various ‘Exceptions’ to the prohibition in part 29 of the Act against discrimination in the provision of services. Sub-section 27 of Schedule 3 allows for the provision of single-sex services. It states that the service may be provided to “persons of one sex if … the limited provision is a proportionate means of achieving a legitimate aim.” Sub-section 28 provides that even in the case of single-sex services, a transgender person may lawfully be discriminated against if it is “a proportionate means of achieving a legitimate aim”. The provisions of ‘exceptions’ from the general prohibition on discrimination for reason of sex or of gender reassignment does not import any test of ‘exceptionality’ in the sense of rarity or unusual deviation from a default. In this sense, an exception could be invoked 99% of the time. The legal test of when these exceptions may be invoked is clear from their text: proportionality in pursuit of a legitimate aim."

It has to be proportionate in pursuit of a legitimate aim - single sex services are a legitimate aim. If there is only one male wanting to use the ladies loo and 10 females it would be proportionate to prevent the male from using a single sex toilet based on the fact that that person is of the opposite sex. Possession of a GRC doesn't affect this however I'm not a lawyer. I suggest you check out Legal Feminist website and also Fair Play for Women.

Basically it's up to your employer to apply the single sex exemptions. In your shoes I would speak to your manager. Your male colleague won't have a GRC but if this person is undergoing, has undergone or is proposing to undergo 'gender reassignment' this person could claim this as protection from discrimination. But a toilet is provided for his sex and saying no to a request isn't discrimination.

But don't listen to me, or anyone else here or elsewhere who isn't a lawyer. A quiet word in the ear of someone who has responsibly for making decisions would be a good idea, to get ahead of any potential issues would be wise I think.

Given your situation, it might be useful to approach HR and make them aware that self-id is not a sufficient reason to access opposite sex facilities and that the EHRC stated in court that both a blanket trans inclusion and a blanket trans exclusion policy would not be in line with the statutory codes. They specifically focused on someone who has medically transitioned and is now indistinguishable from a woman in every way, who should not be automatically excluded from a female-only facility. But that also means someone who merely identifies as trans has no automatic right to access opposite-sex facilities either.

Not a lawyer, etc.

PP have rightly pointed out the Equality Act, but it's worth remembering that the Workplace (Health, Safety and Welfare) Regulations 1992 requires employers to provide single-sex or single-occupancy toilets.

There seems to be quite a lot of differing opinions among lawyers about this, and not much case law. From your point of view I guess the argument is that the employer would be indirectly discriminating against you by failing to use the exceptions which allow them to exclude a tw from a female space if its proportionate. Are they supposed to do an equality impact assessment before changing policy? I expect so.

The law society has just changed its policy template (designed for law firms) on this issue to recognise that there is no blanket rule.
www.rollonfriday.com/news-content/exclusive-law-society-revises-policy-single-sex-spaces

It would be good to have a 'women's citizens advice bureau' for issues like this. There was talk of a women's law project but I don't think anything came of it.

Sex matters and legal feminist might be good sources. I can see why you would want to get in first before hand, as its difficult to undo what's done, but if you do raise it I think it will have to be in general terms, separate from a real life situation.

Thanks to everybody for taking their time to give me your responses. It's a shame there's no definitive answer, though.

@InspiralCoalescenceRingdown I think that's the angle I'll be taking - if that's the case, I don't think there would be any issues at all. The building I work in must have been built since that law was brought in so I'm surprised there isn't one. (Unless there is in a far flung corner of the building that I haven't yet discovered.) I'll look into the specific wording of the law so I know what I'm talking about if/when I do raise it.

I'm not sure what But hey - give them a chance perhaps? Coming out at work and transitioning must be a difficult thing. means. I know he won't be going through an easy time. I already stated in my OP that I support his right to present how he wishes and would call him by his preferred pronouns. I don't think any of my OP suggested I'd be going after him with pitchforks, or even a mild tut.

@Manderleyagain thank you, good advice. I really don't want to have to make a fuss about it. I have to work with a large team, many with differing views on this issue.

I guess it's partly a point of principle in a work environment - I don't feel unsafe with the men I know using the women's toilets (as I would in a public toilet) just uncomfortable. Whether that's enough to ostracise myself, I don't know 🤷‍♀️. I think I will raise it in general terms - he's not exactly been discreet, but I certainly don't want to out somebody before they're ready.

How did he respond when you told him your opinions out of interest? Was the conversation ok?

You feeling uncomfortable with a transwoman is not likely to be a legitimate purpose

Women are entitled to the same respect, dignity and privacy as males. This is perfectly legitimate. A woman's desire for a female-only space is legitimate.

You can also look at the Health and Safety executive guidelines on toilet provision, and building regs in your local authority.

www.hse.gov.uk/simple-health-safety/workplace-facilities/health-safety.htm

Regs in England: www.gov.uk/government/publications/access-to-and-use-of-buildings-approved-document-m

Scotland: www.gov.scot/publications/planning-circular-1-2020-changing-places-toilets-regulations/

Further, women also need single sex toilets for very specific reasons, to do with biological processes which I don't need to spell out. Hence toilets need to be single sex.

I don't have time to look closely at all of that right now, but hopefully will provide a starting point.

He was perfectly fine with the discussion and even said he 'could see both sides'. He asked me another question (about trans men in sports) the day after.

He's a nice man, helpful and considerate, which is why I was surprised when I heard him talking about potentially using women's toilets.

Anyway, I did have a brief discussion with a manager - I asked if there was a self contained loo and sink somewhere (she thinks there is) and suggested that they might like to think about their 'trans in toilets' policy (I didn't put it quite like that 😀) sooner rather than later, in case the subject came up. I also asked that my name is kept out of any discussions with management, hopefully she'll stick to that.

Thanks again to everybody for their contribution, links and information.