Work DEI response: single-sex toilets

[ToriaB]

Excerpted response below from my email to the head of DEI where I work; my question and his answer.

Tempted to respond by saying "Humans don't change sex".

Just to confirm – does this mean that [this higher education institution] are no longer offering single-sex facilities at the study centres?

No – there is no change to our facilities, [the higher education institution] are continuing to provide single-sex facilities. Trans men may use male designated toilets and Trans women may use female designated toilets, as is our current policy. We are also investigating the possibility of our accessible toilets broadening their scope so that they may be used as a gender-neutral, single-lockable space.

Actually I probably should have said indirect religious discrimination. So the argument in this case would be that toilets are available to all (so there is no direct discrimination), but that they are not in practice usable by Muslim women because of their faith. The university could defend this argument on the basis that truly single sex toilets exclude transwomen. With that kind of argument, they should, legally, balance the disadvantage caused to Muslim women by alllowing transwomen in, against the disadvantage caused to transwomen by not allowing them in. In a huge organisation like a university you'd think it would be difficult to justify having no single sex toilets, thought you might be able to justify having half and half, for instance. Or at least having some toilet areas with very big individual stalls. But I don't know whether that would be sufficient for Muslim women? It's hard to know how a case would go, as the Tribunal itself might be ideologically captured. But I really think someone needs to bring a claim. See this explanation from the CAB:

"It is also illegal for someone to have a rule, policy or practice which someone of a particular religion or belief is less likely to be able to meet than other people and this places them at a disadvantage. This is called indirect discrimination.
Examples of indirect discrimination might include:

• refusing to allow you into a restaurant if you're wearing a hijab or turban
• requiring all your employees to dress in a particular way if this means they can’t wear an item of clothing they regard as part of their faith.

If you have suffered indirect discrimination because of your religion or belief, you may be able to make a complaint about it. However, if the person or organisation you are complaining about can show there are genuine reasons for the rule, policy or practice and that it has nothing to do with your religion or belief, this won't count as discrimination. For example, it might not be discrimination if your employers need you to dress in a particular way for health and safety reasons – such as a firefighter needing to wear a helmet in dangerous situations, even if it means removing a turban. For more information about indirect discrimination, see Indirect discrimination."

Also delurking to add my support OP, please keep going

Actually I probably should have said indirect religious discrimination. So the argument in this case would be that toilets are available to all (so there is no direct discrimination), but that they are not in practice usable by Muslim women because of their faith. The university could defend this argument on the basis that truly single sex toilets exclude transwomen. With that kind of argument, they should, legally, balance the disadvantage caused to Muslim women by alllowing transwomen in, against the disadvantage caused to transwomen by not allowing them in.

that's just surely a numbers game? How many Muslim women vs how many trans women? I'm guessing it applies to Muslim men and trans men too?

The problem being, of course, that if this isn't thrashed out before unleashing the policy, are Muslim women more likely to complain and try to get the policy changed or are they more likely to just withdraw? And trans women? Are they more or less likely to kick up a fuss than just withdraw?

Having a list of protected characteristics is fine and dandy - but how do you measure them against each other? you can't. That wouldn't be fair on anyone. So in the end you have to consider a) how many people in each group are being affected and b) how you can set up a separate facility for the (hopefully) small number who are being excluded.

Autistic females
Gypsy/Roma/Traveller females
Some Orthodox Jewish females
Females with trauma
Females with a history of CSA
Females with a history of DV/DA

There's a lot of females who require single sex provision. And their 'intersectionality' requires that males bloody get over themselves and permit females to have inclusion and equality and the right to bloody pee too without throwing themselves on the floor and screaming about genocide.

OP

Well done. And well done for keeping at it.
I cannot but fully agree that you must make sure to continue to have everything in writing. (I would forward all emails to your own personal email as well, and / or print.)
Please keep posting here for support (and help if needed, but currently you're doing very well:)

”The university could defend this argument on the basis that truly single sex toilets exclude transwomen.”

They could self-exclude, but truly single sex toilets don’t exclude men who claim they are women as obviously they can use the correct toilet for their sex.

Presumably they’d have to prove that their belief that they are women is a religious-type belief or at least a belief covered by the EA to demonstrate indirect discrimination?

What about agender females? I can't see there's any moral argument to lump me in with trans women when we share neither sex nor gender. I don't have more in common with a trans woman than with other males.

( @nilsmousehammer this isn't meant as a criticisism of your list, more highlighting (another) core disconnnect between what genderists claim to believe about gender vs what they demand in practice).

A mirror at the back of the door won't solve the problem nor will full length doors. Many traumatised women cannot queue for toilets with men in the queue or use cubicles if there is potentially a man in the cubicle next to them. Some/ many of them are covered as a protected group by the EA due to disability.

As you say, transwomen would still have access to the men's toilets. I don't think that the employer would have to show that gender identity is backed up by science or is a religion (and it's a protected characteristic anyway, though with exemptions). It would be very interesting to see how it played out. To take an extreme situation, you could have a company which employs one Muslim woman and a hundred transwomen. All the transwomen clamouring to use the women's toilets and claiming that they suffer psychological harm by not being treated fully as women if they have to use the gents'. The employer might argue that it is reasonable to let them use the women's toilets, even if it meant that the Muslim woman had to go out to a public toilet twice a day.

I left the UCU because - well. They're the UCU. They only care about the "women" with penises.

This is the genius next step. As HR are already involved and letting him take the lead on this, submitting an FOI circumvents his "I don't want to talk about this anymore" attempt to close me down.

Very good point about forwarding to my personal account. Thank you!

Thank you all so much for your help, advice and support on this.

OP

Hopefully it definitely won't come to this, but they may try quite dirty tactics.
If you're ambushed on the spot, make sure that you get your mobile to record. (Even if it's not quite legal blah blah.)

Or they may say something that would really make you feel threatened re your job, etc. With the benefit of detachment - i.e. for someone who's not in the line of fire - one would see that it would be a bluff. So please come back to this thread for our support - emotional and legalistic:).

Thanks for what you're doing, again!

The reasonable solution is to provide third space gender neutral whatever spaces for male people who do not want to use male only spaces. And then expect those male people to respect that female people also have need for access and inclusion, and comfort, and dignity, that is equal to theirs.

Otherwise the argument boils down to nothing more than serving biological males to the detriment and subordination of biological females. Which would be male supremacism. Entirely on a binary sex basis. It is treating females less favourably than males on the basis of their sex. For no better reason than some males will get cross if females are treated equally to them.

I don't see how that can stand up in court. 'They can't have equality cos I don't want them to' is not much of an equality/inclusion/diversity argument.

How does this read as no response since last email where I asked if he was refusing to confirm whether an Equality Impact Assessment had taken place and to share the staff and student consultation that supported this decision?

Dear [Man]

As I have had no response from my previous email I am now confirming that I am submitting the questions below as a Freedom of Information request.

Has {Institution} sought legal guidance on the decision to offer mixed-sex “single-gender” toilet facilities?
Was an Equality Impact Assessment undertaken?
If so, did it take into account the requirements of:

• Muslim females
• Orthodox Jewish females
• Gypsy/Roma/Traveller females
• Autistic females
• Females with trauma
• Females with a history of CSA
• Females with a history of DV/DA

What impacts or barriers were identified? What actions were taken to address identified impacts or barriers? What questions did the staff and student consultation ask relating to this policy? What were the aggregated responses to the consultation that supported this policy?

I remain concerned that the institution risks reputational damage if this is not addressed prior to an incident of student complaint due to the lack of single-sex facilities, and that we are not compliant with workplace legislation for provision of the same.

Great to see your continued challenge, Toria. Thank you for taking a stand.

Good letter, @ToriaB. Am I right in thinking this is a university, and so definitely subject to FOIA?

Damnit, @MargotBamborough - it's a university but a private provider. Arse.
Good point, well made.

Excellent letter though!

Could change it to:

Dear [Man]

As I have had no response from my previous email I am requesting confirmation that you are refusing to provide answers to my questions below:

A private provider of what? Is the university itself public, or is it a completely private higher education institution?

Can you include anything like "should I not receive a response from you I will forward my concerns to ( higher authority)".
If there is no sanction, then he can carry on ignoring you with impunity.
Is there anyone else you can copy in that might be helpful or are they all captured?
Clearly man has realised that he has no answer to your questions and so he is trying to ignore you and hope you will go away - cos after all you are wrong and he is right, no matter how wrong he is!! He doesn't know that he is messing with the Might of Mumsnet. The whole coven is behind you.😃

I would add "females who want privacy away from males" to your list. They are every bit as important.

That odd beast, a private HEI. Stakeholders and everything.