Question submitted to LawFirm:
Summary
The LawFirm transitioning policy rightly makes clear that any colleague wishing to transition to a different gender identity be supported by the firm and colleagues. However, by allowing any male bodied person to use women's changing rooms/showers and women's toilets, it ignores the needs of women at LawFirm for dignity and privacy.
However sympathetic women may be to a transitioning male colleague, we do not want to shower and get changed in front of male bodied people, or to share toilet facilities with them.
The transitioning policy refers only to the needs and wishes of the transitioning person. Did the firm consult female employees or undertake any Equality Impact Assessment in relation to the impact on women at the firm of this policy, and if not, will it now do so?
I am not aware of any trans colleagues in LawFirm (which isn’t of course to say there aren’t any), but felt it important to raise this issue now, as I would not want any colleague transitioning in future to take the below as a personal attack on them.
Full question
If any colleague at LawFirm wished to transition, I would hope and expect they would be supported by colleagues, and treated with sympathy, dignity and respect.
However, I am concerned that:
- the LawFirm transitioning policy discriminates against women at the firm;
- the firm has uncritically followed Stonewall's guidance, when this has been shown to be misleading and to misrepresent the law [1] (see also here)[2], and to betray gay people*[3] as well as women; and
- the firm did not conduct an Equality Impact Assessment, consult women at the firm or seek any guidance from any women's interest groups (to counterbalance the wholly one-sided Stonewall view), when drawing up its transitioning policy.
Sex is of course a protected characteristic under the Equality Act 2010, as is religion (as to which see further below).
In particular, and as noted above, the transitioning policy states that if a LawFirm colleague transitions, they are entitled to use the toilets and changing rooms/showers of their new gender identity.
This means that if a male colleague transitioned to the female gender, women at the firm may be required to share the women's toilets and women's showers and changing rooms with a male bodied person.
I think the overwhelming majority of women at the firm would not be comfortable with this [4]** and if a male bodied colleague were to transition it is likely that many women would avoid using women's toilets and the women's changing rooms if they thought they were likely to encounter that colleague there.
Female-only changing rooms and toilets are lawful and achieve the legitimate aim of providing the safety and privacy that women want and need when they are in a state of undress, or when they are going to toilet or using the space to dealing with multiple other sensitive issues (such as incontinence, menstruation and miscarriages).
This is particularly important for certain categories of women, including survivors of sexual assault or domestic violence (who certainly exist at the firm), while some forms of Christianity, Judaism, Islam and other religions have strict rules that require females to be covered in the presence of males, so such women would have to self-exclude from women's facilities if a male bodied person may be present.
Special exceptions exist in the Equality Act to allow the lawful exclusion people born male from female-only spaces, with changing rooms listed as a specific example in the official guidance to the Act.
All males can be lawfully excluded, even members of the male sex who self-identify as women and even males who have legally transitioned to female. The vast majority of trans women do not legally transition and do not undergo gender reassignment surgery so retain male bodies including male genitalia. I use the women's changing rooms and showers frequently at work and I would not be comfortable in getting undressed in front of any male bodied person other than my partner. I am in no doubt that most women feel the same.
The impact on any trans woman colleague of retaining single sex spaces, and the dignity, privacy and safety of any such person, can be adequately met by providing in the firm's policies that any transitioning person use the gender-neutral toilets and changing rooms, or the facilities which match their biological sex. (Interestingly the policy seems to ignore the fact that some trans people prefer to continue to use the facilities of their biological sex rather than their new gender. Trans men in particular do not always wish to use men's facilities).
Potential claims against the firm
The policy gives rise to a number of potential claims against the firm, and again I wonder if any of this was considered when the policy was drawn up:
Indirect discrimination
As noted above, the fact that the transitioning policy allows male bodied people to use women’s changing rooms means that some women would be prevented from using them if their religion says they must not uncover in the presence of males. No improper conduct has to actually occur. It is enough for a woman to have been unfairly deterred from using the changing rooms because of the transitioning policy.
Sexual harassment claims:
A changing room policy that facilitates unwanted conduct of a sexual nature by another person could lead to a claim for sexual harassment. A sexual attack does not have to happen for harassment to have occurred. It is sufficient that the policy has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity.
While a small number of private gender-neutral facilities exist, these would not be sufficient for, eg, female attendees of a gym class to use. This is quite apart from the fact that women should not be forced give up their own hard fought-for single sex spaces [5] to male bodied people.
Conclusion
While no doubt well meaning, the efforts to bend over backwards to be inclusive towards a tiny (and perhaps currently theoretical) minority group have the effect of excluding well over 50% of people at LawFirm.
I have directed this query to a number of addressees and I would hope at least some of them are already familiar with the Equality Act 2010 Schedule 3, sections 27 and 28, as well as the EAT judgment in Forstater v CGD Europe [6]. Before formulating a response, I would ask whoever is tasked with considering this query to read the detailed legal analysis at: fairplayforwomen.com/changing_rooms/.
If (as I suspect) time does not permit the above to be addressed very fully during the Town Hall, then I would very much welcome a full written response to this question whether to be provided via the Intranet or to my [personal email].
In addition to addressing the question of an Equality Impact Assessment, I would like to know whether the firm will publicly confirm/adopt a policy that it will not tolerate bullying and harassment of employees who respectfully express gender critical beliefs? I presume it is not only LGBTQ+ colleagues who are permitted to bring their “true selves” to work.
While the EAT has stated that gender critical views are protected by law, (and this has recently been confirmed by the EHRC) I feel able to raise these issues only anonymously. This is perhaps more a reflection on wider society and the very successful attempts made by Trans Rights Activists to silence and intimidate women who dare to raise entirely legitimate concerns (Stonewall’s #nodebate being one of the most egregious examples).
However, the wholly one-sided nature of the firm's current transitioning policy, as well as its subscribing to Stonewall’s Diversity Champions programme means I feel unable to express my legally protected beliefs at work, which should be a source of regret to the firm.
I very much look forward to your response.
*With apologies, I would not normally include links to the Daily Mail.
I would also note, in relation to Stonewall, that its CEO has likened gender critical people – including any lesbian who does not wish to have sex with a trans woman – as akin to antisemites, a view which many Jewish people [7] as well as lesbians, find extremely offensive.
** The results of the recent YouGov poll show an overwhelming majority women think that trans women who have not had gender reassignment surgery should not be able to use women’s changing rooms or toilets. As noted above, the vast majority of trans women never undergo gender reassignment surgery.
Footnotes:
- https://sex-matters.org/wp-content/uploads/2021/07/Sex-Matters_-Understanding-Stonewall-Risk-_-070721.pdf
- https://unherd.com/thepost/the-university-of-essex-exposes-stonewalls-toxicity/
- https://www.dailymail.co.uk/news/article-10811203/Trans-activists-wrecked-good-work-Stonewall.html
- https://yougov.co.uk/topics/politics/articles-reports/2020/07/16/where-does-british-public-stand-transgender-rights
- https://www.historic-uk.com/CultureUK/History-of-Womens-Public-Toilets-in-Britain/
- https://www.gov.uk/employment-appeal-tribunal-decisions/maya-forstater-v-cgd-europe-and-others-ukeat-slash-0105-slash-20-slash-joj
- https://www.thejc.com/news/uk/anger-grows-over-stonewall-boss-antisemitism-comment-1.517532