Challenging employer’s trans policy

[Noideahowtovoicemyconcern]

Hello,

name change for obvious reasons. A large public health sector employer in England has trans policy which allows trans persons use their preferred toilet and changing room facilities. The organisation offers gender neutral facilities right next to women’s and men’s facilities. However the policy effectively means that trans women can use women’s toilets despite gender neutrals being right next to it. The policy uses the widest possible definition of who is trans, including self-IDing and crossdressing, no need for surgery. To me, this effectively means the abolishment of single sex spaces.

My understanding is that other organisations often exclude trans persons from opposite sex facilities if gender neutral facilities are offered. Compared to other organisations, my employer goes much further with their offer to trans, both in terms of access and definition of the group.

I know that my employer did Equality Impact Assessment for the policy but apart from that, there seems to be very little consultation of women, religious minorities, ethnic groups or victims of sexual violence before pushing for the policy. When I asked about male threat to females and since it is known that trans women are in line with males in offending pattern, and asked how has our organisation considered that safeguarding issue, I was told that because ‘anyone could be a risk to anyone in any case they hadn’t felt the need to address that’.

How can I get them to change the policy so that it’s not “preferred facilities” but use facilities for their original sex or gender neutral. I’m of course going to scrutinise the consultation process and I’ve got some points on why it’s a safeguarding issue but would appreciate your thoughts, especially around legislation and how other orgs do safeguarding of staff.

I think I'd focus on 4 things, and ask them to consider the risk of legal action as a result of their discrimination;

A toilet is only suitable for use by women if it contains a sanitary waste bin. So if all of the toilets are for use by women, they all need a sanitary waste bin, otherwise they may be discriminating against women by providing fewer facilities.

The fact they are misusing the terms 'men' and 'women', and are actually providing only mixed sex facilities. Its reasonable to expect single sex facilities to be single sex. If they only want to provide mixed sex facilities they should label them correctly.

Its reasonable to expect an equality impact assessment to assess the impact. Is their intention intend to bar people from certain religions or cultures from their workplace? Why don't they support women who are dealing with menopause, menstrual flooding, or miscarriage?

If they are a public sector organisation they have a legal duty to foster good relations between groups with protected characteristics, and they aren't achieving that by removing the rights of all groups bar one.
researchbriefings.files.parliament.uk/documents/SN06591/SN06591.pdf

Is there guidance on how Equality Impact Assessments should be conducted? It seems bizarre that we end up with these blatantly discriminatory policies despite EIAs.

Do you work for an NHS trust OP?
You can see if your trust is signed up to the NHS rainbow badge project from the reply to this FOI.

https://www.whatdotheyknow.com/request/costoffthenhssrainbowbadgee_pr

Answers to other FOIs regarding Rainbow badge accreditation have revealed hospital policies that support trans people using the changing room of their gender. That goes for patients and staff

Are you able to get a copy of the EIA? I wonder if it was completed by a man.

You should look at your employer's/trust's EDI policy to start with. I have looked at a few. They frequently conflate sex with gender, as this one from Nottingham University Hospitals trust does. And invariably state that trans people should be accommodated according to gender.

www.nuh.nhs.uk/download/doc/docm93jijm4n11660.doc?ver=27150

Here's an old thread about a trans woman who has won a case against the NHS for being treated differently relating to changing room policy. Lots of discussion about the law and explanation of technicalities of the case. It might be difficult for you to challenge your employer OP.
The changing room I use in my quite large Dept is not much bigger than my bedroom. One long side has two loos and a shower cubicle, the other has the entrance door and about 100 lockers. One end has coat hooks, the other more lockers, a lot of women use it. If a man was naked and swinging his 🍆 there would be nowhere to go to get away. I have occasionally struck up the topic of conversation and everyone would be outraged if a man started using the room. And no one is naked, ever. The judge was quite wrong when talking about that. We come in, remove home clothes and change into uniform. No one removes underwear to do this. Those using the shower take their clothes and towel in with them and change in there. I asked a younger male colleague about the mens changing room, it is similar to the women's and like the women, men using the shower get dressed in the shower area. He looked quite horrified at the suggestion that some men might strip down naked in full view. No one does it.
I do know there is a trans man in the hospital using the male changing room in their department and the men are uncomfortable about it. No one dares say anything.

Transwoman wins employment discrimination case against NHS for being treated differently from women in changing room www.mumsnet.com/Talk/womens_rights/4593138-transwoman-wins-employment-discrimination-case-against-nhs-for-being-treated-differently-from-women-in-changing-room

I do know there is a trans man in the hospital using the male changing room in their department and the men are uncomfortable about it. No one dares say anything.

This boundary trampling and making other people uncomfortable so one selfish person can be validated has got to stop.

To be fair the case was about colleagues talking appallingly of a trans woman, I don’t think trans people should ever be treated like that, they should have been left in peace. The issue is with the employer creating policies that do not adhere to law.

Been digging around online and it looks like consultations and reviews in health sector systematically exclude womens organisations, or quality of engagement is poor. I feel the best way is to scrutinise how they incorporated feedback, i.e. see if there is any evidence of not addressing concerns from advocacy groups.

It is common that trusts proudly talk about abolishment of mixed sex facilities but in annex say trans persons need to be accommodated in the facilities of their presentation (dress, name) which can mean self-IDing.

1. I wonder what govt guidance says on trans persons in single sex wards, and if that is at odds with NHS policies?
2. If I request papers, apart from EIA, what else should I ask to see?
3. Also I’m looking for practical evidence on the importance of safeguarding like here: committees.parliament.uk/writtenevidence/18062/pdf/

A couple of points that occur:

Where are the accessible facilities for female people who cannot use mixed sex spaces? That some male people identify as women and have a piece of paper with legalities does not change that they are male, and that the space is mixed sex the moment they enter it.

Many of the female people most affected by this are vulnerable and also have protected characteristics. Surely inclusion and not discriminating against them is equally important as TQ+?

Female people must not be put in a position of having to disclose highly sensitive information in order to request an accessible facility. This is absolutely unacceptable. Therefore it cannot be a case of a female person has to approach, out themselves and request help - it would not be acceptable to do this to a TQ person and female people are not any less human. There must just be a facility they can use without question or comment from anyone on a self identified basis.

Male people in the building must be requested to respect the female only facility and to use the choice of the male toilets, women's toilets AND gender neutral toilets and be generous enough that with their three choosy choices and ego stroking that they do not need to remove female people's one and only accessible option and need to respect other people's needs.

If the employer is going for discrimination against female people who can't use mixed sex spaces, then where is the nearest accessible facility, and how will time be built into those female employee's schedules in order to permit them to drive to wherever and go to the toilet? At this point, a very expensive legal case will be involved, obviously, because that would be outrageous.

The quoted case about the NHS employee has been widely criticised for applying the wrong comparator. The claimant made multiple claims of discrimination and only one of them was upheld, largely because the Trust fully accepted the claimant's story of events despite there being no evidence to support them. The parties were in agreement about what happened, so the Tribunal had to go along with that.
The decision is very readable, as is the legal commentary - they are worth reading. I think EHRC were looking at it too, but not sure if anything came of it. In any event as an ET case it has no precedent value. I don't think you could possibly argue that this bizarre decision would in any way prevent a claim of unlawful discrimination (or breach of the relevant workplace health and safety legislation which requires separate facilities to be provided for men and women) for offering nothing but mixed sex facilities.
OP have you made a report to Biology Matters? They are calling for evidence of just this sort of issue. If you Google Policy Exchange Biology Matters you'll find the details.

Have you looked on the FairPlay for women site. There is an article on EHRC guidance for ss from a legal perspective. Sorry don’t know how to link from my phone. Interesting analysis from Karen Monaghan KC.

Building regs require single sex toilets so they’re in breach of that

To top it off I was told that “we’re not talking about men entering women’s toilets, we’re talking about trans women entering women’s toilets”. So they apply the “rationale” of gender division when developing policy, not the rationale of dividing usage per biological sex. Is it correct that building regs and EA2010 both refer to sex as in biology at birth, and not as social layer of gender presentation? So therefore their basis for policy development does not adhere to legislation?

What is the objective difference between a TW and any other male?

How a male chooses to identify makes no difference at all to females who cannot use a mixed sex space. Because this is about sex. A fixed, immutable thing, and about female equality of access. It's not just all about the TQ people.