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Feminism: Sex and gender discussions

Failure to provide a toilet for the exclusive use of women is sex discrimination

56 replies

afternoonoflife · 14/02/2024 14:25

https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102j048/failure-to-provide-a-toilet-for-the-exclusive-use-of-women-sex-discrimination

I saw this on Twitter. There was no female-only toilet. What happens if trans identified men are using a female-only toilet at work? I’m not a lawyer, does anyone know?

Failure to provide a toilet for the exclusive use of women = sex discrimination

Failure to provide a toilet for the exclusive use of women = sex discrimination

https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102j048/failure-to-provide-a-toilet-for-the-exclusive-use-of-women-sex-discrimination

OP posts:
Snowypeaks · 14/02/2024 15:39

Excellent. Love the clarity of stating "sex" all the way through,

lechiffre55 · 14/02/2024 15:44

It's starting to all look quite expensive isn't it?

You have to pay to make it all unisex, you have to pay all the discrimination payouts, and now you're going to have to pay to put it all back the way it was when you started. Ohhhh and all the legal fees too.

All the waste and stupidity makes it seem like they are auditioning for senior positions within the SNP.

SinnerBoy · 14/02/2024 15:45

Sorry, for those without Twatter:

Failure to provide a toilet for the exclusive use of women is sex discrimination
Waitingfordoggo · 14/02/2024 15:45

I went to an entertainment venue in Brighton last week and there were no single sex loos. There was a ‘women’s’ toilet and a ‘men’s’ toilet, both with a sign saying they were for use by anyone of any gender identity. So two mixed sex toilets, one with urinals. Predictably, the women’s had a massive queue (of women), the men’s had hardly any queue and was only being used by men as far as I could tell.

There was also a sign in the ladies about respecting staff and fellow patrons etc and saying that leaving leaflets/stickers in the loos wouldn’t be tolerated. (I wish I’d taken a photo because I can’t remember how they phrased it- they didn’t say leaflets or stickers but it was clearly what they meant).

WookeyHole · 14/02/2024 15:49

Yes, I would love to know too. My terribly woke organisation which trips over itself to ally to Stonewall and Mermaids now has a policy that anyone can choose to use whichever loo they want.

We had disabled loos entirely separate to the ladies and gents but adjacent - door straight into single toilet and sink room which were rebranded as gender neutral some time ago. More recently the new policy was quietly published (having consulted with the aforementioned charities and members of the trans community but not current non-trans employees). We have ladies and gents which are a typical set up of door to sink and mirror area and then two separate cubicles. Would love to know if this article affects that in anyway. To me, the relative safe space/privacy from men of the sink & mirrors area is almost as important as the cubicles.

Forester1 · 14/02/2024 16:16

Excellent news

Snowypeaks · 14/02/2024 16:16

I'm pretty sure that the toilet arrangement you are describing is illegal under various workplace regulations. And they shouldn't have made changes without doing an impact assessment.

lifeturnsonadime · 14/02/2024 16:22

Interesting case.

I don't think this makes a jot of difference to the current position for trans identifying males. Mixed sex toilets are already fine by law, what is not fine is inadequate provisions for women as compared by law to men. This is clearly the case here because of no locks on the door of the accessible toilet and the fact that the men's had urinals that she would have to walk through.

GrannyAchingsShepherdsHut · 14/02/2024 16:28

Interesting about the non domestic, public and private buildings. Does anyone know if that covers customer toilets?

My employer's policy is that if a customer complains about a trans customer using a toilet for their gender rather than sex, they're to be told we allow people to use the toilet they feel is most appropriate to their needs or identity. No idea if that's legal, does anyone know?

Eta: I re read it properly, and I guess the answer is, not decided yet.

MrsOvertonsWindow · 14/02/2024 16:48

There's a nice Valentine gift for women - employers can be fined if they fail to provide women with single sex toilets. ❤

Emotionalsupportviper · 14/02/2024 18:11

lechiffre55 · 14/02/2024 15:44

It's starting to all look quite expensive isn't it?

You have to pay to make it all unisex, you have to pay all the discrimination payouts, and now you're going to have to pay to put it all back the way it was when you started. Ohhhh and all the legal fees too.

All the waste and stupidity makes it seem like they are auditioning for senior positions within the SNP.

All the waste and stupidity makes it seem like they are auditioning for senior positions within the SNP.

😂

theilltemperedclavecinist · 14/02/2024 18:23

I don't think this decision will make any difference. Even leaving aside the muddle over the impact of GRCs, Stonewall advice is unchanged and is being followed.

The advice is that if you have separate ladies and gents in accordance with 1992 HSE Regs., it's indirect discrimination to exclude TWs of any flavour from the ladies (they just need to pee!) and excluding them would not meet any legitimate and proportionate aim (its a very high bar!).

What we need is a test case with a large building with ladies, gents, and the minimum of accessible, plus enough TW (or annoying signage) that women can sue for indirect sex or religious discrimination (there are possible men in the ladies!). If they win, the problem of indirect anti-trans discrimination still remains, but fixable with extra gender-neutral facilities.

MurielThrockmorton · 15/02/2024 06:44

I was trying to find the Miller case the other day, I couldn't remember who or where it was, so thanks for posting this. My student DD sent me a video (unprompted) of the toilets at one of the university buildings that are now men and all genders, no women's, which she was annoyed about. She's come quite a long way in the last couple of years, she used to be uncomfortable at not "being kind" despite pretty much believing what I do, but she's much more outspoken now about how it impacts her.

Tinysoxxx · 15/02/2024 09:34

There’s an ominous bit about how this might all change with the 2023 toilet consultation. I really hope the government see that single sexed toilets are safer for everyone, and that all people with invisible disabilities (epilepsy etc) and people suddenly taken ill (stroke, heart attack) need those toilet door gaps not found in mixed sex facilities. Also that those private little mixed sex cubicles are not conducive to safeguarding in terms of sexual assault, drug taking and self harm (all of which schools have to deal with).

Snowypeaks · 15/02/2024 14:43

IANAL.

I'd love a test case about single sex toilets/changing rooms and indirect discrimination if men claiming to be women are excluded from the women's facilities.
Toilets and changing rooms are about people's actual bodies, not their feelings about them.
It's all very similar to the prisons discussion. I know the JR of men in women's prisons failed, but that was because it was a Government policy and the EA doesn't say is framed permissively rather than prescriptively about single-sex provision. Also in that judgement, heavy hints were dropped (on my reading of it) that any legal action based on the entirely foreseeable harm to women which resulted from the policy would probably be successful.

I am assuming the courts would have to start from the principle that males with the PC of Gender Reassignment can't be less favourably treated than other males. I think the claim could fail right there because if there are male toilets with urinals and some cubicles (a tiny minority might not be able to use urinals) then there is no disadvantage. They can use those as easily as any other male.

They might argue that they felt unsafe in male facilities, but in a court of law, I would think you'd have to provide evidence that you were unsafe - statistics on assaults etc, not vague feelings. (But gay and disabled or SEN are potentially vulnerable, too.) Or they might allege it was an affront to dignity (why?) or privacy (but there are cubicles). And even if solid evidence was provided (unlikely) and accepted, that would not = may use women's facilities, because the discrimination would have to be relative to others of the same sex, who are also excluded from the women's facilities. It would logically mean third spaces where possible.
And since even males with a GRC can be lawfully excluded, I can't see how males without even that fig leaf could win, even if it took an appeal court to give the final judgement.

Treaclewell · 15/02/2024 15:07

If they say that people can use the toilet they feel most appropriate for their needs, surely women can argue that there are no toilets they feel appropriate for their needs, which include privacy from men,

theilltemperedclavecinist · 15/02/2024 15:13

I dont care whether it's anti-trans discrimination if TWs can't use the ladies. I'm sure they could make a colourable case, but it's fixable by providing a third space either way.

I'm interested in the fact that in some buildings there is sex discrimination going on because the toilet provision for women is much worse than for men (the test is not whether they are treated the same, but whether someone suffers disadvantage).

The men have single-sex facilities but the women must endure mixed-sex facilities, so some are likely to self-exclude and so have no provision.

The David Lloyd case may help.

theilltemperedclavecinist · 15/02/2024 15:17

Treaclewell · 15/02/2024 15:07

If they say that people can use the toilet they feel most appropriate for their needs, surely women can argue that there are no toilets they feel appropriate for their needs, which include privacy from men,

Quite. Badenoch is working on building regs to include single-sex (both sexes) and unisex as well. I wonder what labour will do though.

Snowypeaks · 15/02/2024 15:21

It's pretty clear it is sex discrimination if no women-only facilities are provided. The relevance of any claims of unlawful discrimination on the basis of GR is that providers are being told that exclusion of males with the PC of GR from women-only facilities is unlawful, or that the circumstances in which it would be lawful are in practice nonexistent. That's why it would help to have a test case, IMO. It would directly contradict Stonewall Law.

lechiffre55 · 15/02/2024 15:27

Hypothetically -
If both gender ideology and gender criticallity are both beliefs protected under the Equality act. Then they should both hold equal weight in legal consideration.

If a male who believes he's a woman wants to use the women's toilets because he feels unsafe in the men's toilets then doesn't this establish that women shouldn't have to use the same toilets as men?
The male believes he's a woman ergo he would be unsafe in the men's toilets.

But a woman who doesn't believe you can change sex ( a protected belief ), sees the male as a man ( protected ) in the women's toilets. By the logic of the male woman the female woman has every right to feel as unsafe as he does using the men's. He has already established that women shouldn't have to use the same toilets as men in his own argument because he believes he is a woman. She believes he's a man, she shouldn't be forced to use the same toilet as him because as he says it's unsafe.

The two beliefs are in conflict.

Snowypeaks · 15/02/2024 15:47

lechiffre55 · 15/02/2024 15:27

Hypothetically -
If both gender ideology and gender criticallity are both beliefs protected under the Equality act. Then they should both hold equal weight in legal consideration.

If a male who believes he's a woman wants to use the women's toilets because he feels unsafe in the men's toilets then doesn't this establish that women shouldn't have to use the same toilets as men?
The male believes he's a woman ergo he would be unsafe in the men's toilets.

But a woman who doesn't believe you can change sex ( a protected belief ), sees the male as a man ( protected ) in the women's toilets. By the logic of the male woman the female woman has every right to feel as unsafe as he does using the men's. He has already established that women shouldn't have to use the same toilets as men in his own argument because he believes he is a woman. She believes he's a man, she shouldn't be forced to use the same toilet as him because as he says it's unsafe.

The two beliefs are in conflict.

I'm not sure if this was in relation to my post, but if it was, I just wanted to say that (assuming GI and/or TWAW are protected beliefs, which we don't know yet) they couldn't allege discrimination on the grounds of belief unless they were disciplined at work/banned from a venue for saying TWAW or calling for the women's facilities to be mixed-sex (or gender-neutral, as they would put it), while people who vocally supported single-sex provision and grammatically correct use of pronouns were not censured. The exclusion from women's facilities would not be on the basis of their belief in a GI or that TWAW, it would be because they were male, and would be lawful.

Snowypeaks · 15/02/2024 15:49

theilltemperedclavecinist
I hope it does. It is fundamental to a lot of cases, including Sarah Summers'.