Legal rights of women and girls to single-sex spaces

[OfInvention]

This seems a good opportunity to check if you have read through the following documents, which clarify the position on the legal rights (Equality Act, 2010) of women and girls, men and boys.

On 4th July 2022, Kemi Badenoch, as Minister of State for Equalities, Local Government, Faith and Communities, made a detailed statement regarding the importance of separate male and female toilets, in municipal and private sector locations, and including sex-specific toilets for children in schools. Here is a link to the full statement:
questions-statements.parliament.uk/written-statements/detail/2022-07-04/hlws169

On 10 August, Attorney General Suella Braverman's spoke on Policy Exchange about Equalities legislation. You can see the full speech here:

www.gov.uk/government/speeches/equalities-and-rights-conflict-and-the-need-for-clarity
Section 3.3, is about single sex spaces; followed by an interesting section on schools, e.g. (quote): “It is lawful for a mixed school to refuse to allow a biologically and legally male child, who identifies as a trans-girl, from using the girls’ toilets.”

Please always remember the clear legal definition of sex:
Legal Definition:
Part 2 (Equality Concepts), Chapter 1 (Protected Characteristics), Section 11
In relation to the protected characteristic of sex –
(a)
A reference to a person who has a particular protected characteristic is a reference to a man or a woman
Explanation:
Sex is a protected characteristic and refers to a male or female of any age. In relation to a group of people it refers to either men and/or boys, or women and/or girls.
A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment or sexual orientation.

With regard to toilets, we do need a proportionate number of gender-neutral toilets for the use of people with visible or invisible health issues, who require the assistance of a Carer of the opposite sex, which could also be used by people who do not feel comfortable using their “birth” single-sex toilet.
Please pass on the facts about sex, and do not be bullied!
Best wishes,
The Mother of Invention

I think you misunderstand. There is no right to single-sex spaces under the EA - unfortunately. The EA allows organisation to provide single sex facilities/services if they choose to do so in certain circumstances.

i believe that schools are legally required cough cough to provide single sex loos to children over 8.

Separate male and female facilities. Sadly not necessarily single sex.

Male and female are the 2 sexes.

I forgot my usual disclaimer that stating what the Law says does not mean I agree with it. Silly me.

My understanding is this:

• schools must provide separate toilets for males and females. Since children cannot transition this means that only biological females can use the female toilet. Any student that says they are trans can either use the toilet of their biological sex or need a separate provision
• organisations should provide separate male and female toilets. Since some individuals have a GRC they are 'legally' classed as the opposite sex but are still biologically either male or female. Since you cannot ask to see someone's GRC then there is no way of proving this (other than they are obviously male in the case of 99.9% of transwomen). So whilst they are providing separate toilets the onus is on the user to use the toilet based on their biological sex. Unfortunately many transwomen seem to need to be validated by using womens toilets and single sex spaces.

So the problem here is surely that whatever the government say, getting a GRC is relatively easy and only costs a fiver. Unless the definition of a GRC is changed from individuals being therefore legally the opposite sex I am confused as to what can be done to stop them using single sex spaces that do not match their biological sex.

The only way to stop this is to change the definition of having a GRC to say that biological sex remains the same (which is does) but gender is recognised as different (but doens't mean anything really).

For schools Heath and safety legislation states separate facilities for male and female students rather than EA. The DfE is apparently intending to provide guidance wrt safeguarding and toilets/changing facilities 'soon'....

Schools must by law provide single sex toilets for children over 8, and sleeping dormitories.
The workplace must by law provide single sex toilets. They can provide mixed sex toilets but they should be in addition to the single sex ones.

Service providers can provide single sex services but they don't have to. They are exemptions from the usual ban on discrimination on the grounds of sex. (if they exist now they are probably legal, since the illegal ones have already been challenged.)

Imo if we can't rely on service providers to use The Equality Act exemptions correctly then we need to start using Trading Standards where possible, and challenge the incorrect use of 'women'.

Thanks for posting that first link. I'd been wondering what the result of the consultation wasps I may need to have this conversation at my workplace soon.

The attorney general said:

Yes, it is lawful for a mixed school to refuse to allow a biologically and legally male child, who identifies as a trans-girl, from using the girls’ toilets. This does not constitute direct sex discrimination and is not unlawful indirect discrimination on grounds of gender reassignment. Indeed, if the school did allow a trans-girl to use the girl’s toilets this might be unlawful indirect discrimination against the female children. Further, in law, there is a duty to provide separate single sex toilets, a breach of which would be unlawful under the School premises (England) Regulations 2012 and the Education (Independent School Standards) Regulations 2014.

She says allowing the girls toilet to become mixed sex could be indirect discrimination against girls.

Link

www.gov.uk/government/speeches/equalities-and-rights-conflict-and-the-need-for-clarity

Schools must by law provide single sex toilets for children over 8, and sleeping dormitories

Unfortunately, the Regulations about school toilets do not use the term 'single sex', but instead refer to 'boys' and 'girls', because they were written in a bygone age (2012), when it was assumed that everyone knew what that meant. The exact wording is:

Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time

So it is clear that schools have a duty to provide two sets of toilets but, unfortunately, it is not clear cut that they have to be segregated by sex, as opposed to gender.

It is clear as no child can be legally considered the opposite sex

No child can have a GRC, but it is not clear in the Regulations whether ‘boys and girls’ means sex or gender identity. I would argue strongly that it means the former because the document refers to sex in other sections and does not mention gender. But unfortunately neither the 2012 Regulations nor the 2015 DoE Guidance are explicit on this point.

Yes, I am hopeful that she and Truss (much as I despise them in every other respect) will lean on the relevant Departments to clarify that the schools and workplace regulations mean sex, not gender identity. We need it in writing so that schools cannot weasel out of their obligations.

Then we need primary legislation to give women a right to single sex facilities/services. It’s concerning how many women- like the OP - think we already have that right, when we absolutely don’t.

It is going to take time to get the full clarity but this is inevitably going to shift to sex based provision plus proportionate gender neutral provision for those wishing alternatives. There is no other way to balance all needs as opposed to bin female rights, access and inclusion, it will have to end this way however cross it makes male people not to be allowed to be more important than females.

The OP is presented as if authoritative on what the law is but it omits both the official and recent guidance issued by the Equality and Human Rights Commission and the statutory regulations and guidance for schools. Recent ministerial communications have helped but it's complicated and the law and its implementation are far from straightforward.

It is going to take time to get the full clarity but this is inevitably going to shift to sex based provision plus proportionate gender neutral provision for those wishing alternatives.

Yes. As Suella says, if you're going to admit one man, you have to admit them all, otherwise you would be discriminating. Which means every single toilet, dormitory, shower, refuge, prison, all of it, will be mixed sex. And if anyone thinks the public will go for that, they're wrong.

Massive vote loser.

The Equality Act itself specifies that " 'woman' means a female of any age". Girls are definitely defined by sex.

That doesn’t mean that the same definition applies to the school and workplace regulations. Meanings and definitions can be very different from one law to another.

Which law defines women differently then ?

So minors should be sex separated by in toilets/changing rooms in school, but everywhere else those same young girls may share an intimate space with an intact male stranger.

There's so many issues with the GRC.

It's not like that. Definitions are specific to a particular statute/regulation, they don't read across from law to law.

You don't have to take my word for it. Look around you at all the workplaces and schools that are getting away with allowing TW into female toilets, including in Government departments. They can only do so because the law is currently unclear.

We are on the same side here. I am trying to make women aware of how tenuous/non-existent their rights currently are. People like the OP, confidently claiming that women have a right to single-sex spaces are (inadvertently) dangerous because they are encouraging women to believe that we already have rights to single-sex spaces. We don't.

I am not aware of a single unequivocal right to a single-sex space/service/facility (tho I could well be missing some minor ones because I'm not claiming to have read every by-law in the UK!). We need to fight for a right in law to these. The AG's intervention is very encouraging, but we need to keep up the pressure on her to codify what she has said, otherwise it has no real legal force.

Here's an interesting one.

If you are socially housed you have the right (unsure if it's a right or a responsibility for the LA to provide) a separate bedroom for children over 12 who are sharing with the opposite sex.

So, if you have two boys but one identifies as a girl, or is NB (different sex to male?) could you get the LA to agree you are entitled to another bedroom/house move to bigger home?

Afaik the law allows single sex spaces in workplace - or rape crisis centres - but doesn't mandate them

Then discrimination needs to be proven

Either - men get male only but women don't- should be easy to argue

Or - all are mixed sex but this disadvantages women ( eg puts them off going to the loo as reported in sone schools ) - this is harder to prove and I suspect it will be a series of law suits before it's resolved