Supreme Court - are single gender spaces still allowed?

[DisappearingGirl]

I have a question.

The Supreme Court judgement makes clear that organisations are allowed to provide single sex spaces, services and sports which exclude all those of the opposite biological sex.

However, are they obliged to do this?

Can they still choose to define a space or service as "single gender" (e.g. anyone who identifies as a woman)? Or would this discriminate against males who aren't trans? In which case would they have to choose between "single biological sex" or "everyone"?

In the case of toilets, I think mixed sex (including "single gender") would need to be self contained, but not sure about the rules for other spaces / services / sports.

Basically I'm wondering if organisations can just choose to say, well we've decided trans women can still use our women's spaces/services etc.

I'd go for 2 floors with single-sex and one with mixed. Just how many people prefer mixed over single-sex? I bet there's a lot of people trailing up and down the stairs to the single-sex toilets.

I realize that I could go and read the entire judgment, but I would be hugely obliged if someone who has already done that could explain the context to mentioning the Croft judgment.

I am aware that the ruling stated that in some circumstances, male people could still be covered under the EA as women in the event that they were perceived as being women or were being treated as women in some way (not sure if I got the latter part right, but I think it went beyond just being perceived as).

So was it that part where Croft was invoked, or was there a different context? I know I should go and read the whole thing, but I started and found it incredibly heavy going.

I'm not able to answer fully, but this is the section in the judgement which mentions Croft and it seems to be about comparators in cases of direct discrimination - generally male comparator for male claimant, female comparator for female claimant (unless sex doesn't matter in the particular circumstances of the case). This is the only mention of Croft that I found.

134. First, to demonstrate less favourable treatment in subsection (1) an actual or hypothetical comparator is often relied on to demonstrate that a person without the relevant protected characteristic was or would have been treated more favourably by person A. Such a comparator (actual or hypothetical) must be a person who does not share B’s protected characteristic. Section 23(1) makes clear that, apart from the protected characteristic, there must be “no material difference between the circumstances relating to each case” when determining whether B has been treated less favourably. Accordingly, where sex is the protected characteristic, a woman relying on section 13(1) must compare her treatment with the treatment that was or would have been afforded to a man whose circumstances are not materially different to hers; in other words, a similarly situated man. Where gender reassignment is the protected characteristic, in the case of a male person proposing to or undergoing gender reassignment to the opposite sex, the correct comparator is likely to be a man without the protected characteristic of gender reassignment and similarly for a woman (although there may be situations where the comparator’s sex is immaterial to the comparison). See for example, Croft v Royal Mail Group plc [2003] EWCA Civ 1045, [2003] ICR 1425 at para 74.

Anyone can be unlawfully discriminated against on the basis of a PC that they don't actually have if the person doing the unlawful discrimination thinks they do. That's the sense in which men - all men - would be protected from sex discrimination as women. Vice versa as well and principle applies to other PCs. (Not sure about Pregnancy & Maternity or Disability, as they are treated differently in some ways.)

ETA: I'm ploughing through the judgement as well and although it's well written, I'm wishing I'd never started!

Well, quite.

I have only just recently started working there. I won’t say what industry it’s in but it’s high profile in London. Apparently it was all mixed, but due to people complaining, they re-introduced single-sex toilets. I have to say, as I’m based on the floor where there are mixed toilets, I just tend to use those. They are nice loos. I haven’t come across a male in there yet. It is a bit odd though.

I have noticed a few London restaurants have mixed toilets in this way also…

I think in the case of the NHS Fife case, I was mortified on behalf of Sandie Peggie, due to possible menopausal flooding or such. It’s not okay that we don’t have our own spaces as women where we can tend to such occurrences without the bloomin’ presence of men. As if it isn’t embarrassing enough. If something similar happened to me, I would want it to be in a women’s only changing room or bathroom.

Fair enough - in hindsight, I hadn’t explained it properly. Apologies for my tone!!

Not sure about Pregnancy & Maternity or Disability, as they are treated differently in some ways.

If you employer called you names because he thought you were deaf, then it doesn’t matter if you are deaf or not you could still sue for harassment based on the PC of disability. But you couldn’t sue for discrimination because your employer didn’t provide a hearing loop despite thinking you were deaf, if you weren’t, as you would not have suffered any detriment.

So a man who identified as a woman could sue for perceived sex discrimination if the employer sacked him because they thought he was a woman. But they couldn’t sue because they weren’t allowed to use the women’s toilets because they have no right to and therefore didn’t suffer any detriment,

That's the right quote. In Croft, the transwoman argued that they were being treated worse than all other employees because they were being asked to use the disabled loo during their transition. When you have a case like that, it doesn't really matter if you compare the transwoman to a non-trans man or a non-trans woman - the analysis is the same (i.e. none of the non-trans employees were being told that they must use the disabled loo). The transwoman lost the case as the Court concluded that the employer was reasonable given that they were mid-transition, but they would eventually gain a right to use the women's toilets.

It would be surprising if the SC chose to refer to this judgment in this way without any caveat if it thought that it was now wrong.

I just cannot see how the SC judgment affects the reasoning in Croft. The Equality Act single sex provisions that everyone keeps pointing to are about service providers, rather than work. My background is dealing with these issues in the context of service provision so I am happy to be corrected if I am wrong, but I cannot see anything in the work provisions that would impact on Croft.

The interpretation of the Health and Safety Regs which contain provisions regarding work toilets weren't considered as part of the SC judgment, and arguably wouldn't produce the same absurdities that the Equality Act can if one considers something other than biological sex. Those Regs also didn't prevent the Court of Appeal reaching the conclusion that it did in Croft.

So I think this could be a victory in terms of service provision, but I am not convinced it alters the position on work toilets.

Croft couldn’t have had a GRC though.

Thanks for that @WandaSiri and to others who have commented.

So Croft was mentioned as a case where the sex of the comparator was irrelevant as the claim was made that Croft was being treated worse than all other staff.

That was not a sex based case then, but rather a “gender reassignment” case. Anyone without the protected characteristic of gender reassignment would be a suitable comparator.

I’m slightly shocked that the original court would opine, as part of the judgement, that Croft would eventually gain access to women’s spaces. I feel that was irrelevant to the case in hand. It would be frustrating if a throwaway section that was assumed based on the thinking of the time or the ideas on how that workplace thought they should handle transition somehow became pivotal in what was assumed about how these things had to work in future.

Still, it’s unlikely we’ll see the end of the GRA in our lifetime. Getting rid of it looks a lot less essential than it did before the recent ruling.

Yes. Even though Croft remained male both biologically and legally, they still had a right to use women's toilets after finishing their transition.

I’m slightly shocked that the original court would opine, as part of the judgement, that Croft would eventually gain access to women’s spaces. I feel that was irrelevant to the case in hand.

I don't think it was a throwaway or irrelevant comment. Croft was arguing that they had a right to use women's toilets straight away as soon as they started transition. The Court of Appeal said that can't be right as amongst other things it could be abused by voyeurs. They said that they would eventually obtain the rights they sought at an appropriate point in transition, but they were not at that point yet.

Porn star, stripper, and model are not jobs that are specific to men.

@Grammarnut Legally women in the UK cannot work as miners (since c. 1840).

That ban was lifted. However, I would encourage you to do a bit of reading to understand why that was the case; it was motivated by health concerns for women.

It is absolutely wrong and completely backwards to think that jobs that are dangerous for women are OK to be done by men. This is based on an old belief that men are rugged and can simply shake off any illness, disease, or injury that they experience, and that any man who can't work like this is feminine.

My perspective is that, rather than excluding women from work and expecting men to die from occupational disease, everything possible should be done to make jobs as safe as possible for women AND men.

Also any job that requires heavy lifting will be difficult for women, because they have less upper body strength than men.

This one would be a case by case basis, surely. Some women are stronger than some men. Employers normally assess physical strength whenever it's a requirement for the job.

Heavy agricultural work was carried out in China during the revolution taking no account of women's physiology, menstruation, pregnancy and childbirth, breastfeeding, i.e. they were just a body on the rota.

See above. I would like to think that we as a society can do better than the occupational standards in 1950s China.

Why?

Why should I have to go 2/3 floors away from my work station away if I want or need a SSS?

Why should I have to come in contact with some mans sprayed urine when I need to dispose of period products?

The Equality Act does apply to workplaces as well as services. It’s the whole basis of most employment tribunals.

I live in France and this is not true.

Just because it's common doesn't mean it's legal. I'm looking forward to seeing how this plays out.

I don't know any women who would want to use toilets containing urinals. So the effect of this is that women's toilet provision is reduced because the men can now use all the toilets but the women can only use half of them.

And a male customer who persists in trying to access the female changing room can now be arrested, can't he?

Can he? I'm not sure what law would cover this. It's the business who is providing a single sex space and must consider the Equality Act - other customers aren't liable under the Equality Act. Are you thinking the male customer would be arrested for something like harassment or voyeurism?

I don't think it's OK, or legal, come to that. I'm just saying, it happens, and it's not that uncommon. Less of this sort of thing!

Of course, but the single-sex services provision in Sched 3, para 27 relates to service providers rather than work. Section 31 brings in Sched 3 for the purposes of Part 3 (Services and public functions).

There is no equivalent provision to my knowledge in Sched 9 which is the work exceptions or in Part 5 which is the main work provisions.

As I say, I'd be delighted if I am wrong but there's nothing in the judgment which would change the position on transwomen accessing work toilets post-transition on my reading. It is specifically work that I am talking about here rather than toilets in shops etc.

I still think Croft is a lousy decision which didn't give enough weight to the concerns and feelings of the female employees, but I am just talking about what is rather than what should be.

It would be a bit odd if Croft could go to the loo in a women’s toilet at the office but then be expected to use the men’s in Wetherspoons. There is nothing in the judgment clarifying that men with GRCs can use any female toilets at all, and although the H&S regs were not covered in this judgment it runs counter to the reasoning that sex for the purposes of equality legislation is not certificated sex. I’m not convinced by your argument, with all due respect. I think it’s a grey area, and organisations could be subject to discrimination/harassment claims by women.

If it is a licensed premises he can be arrested for refusal to leave a licensed premises when asked to do so. (Assuming the pub owner asked him to leave the pub not just the toilet, though if the pub owner refused to do that they could be sued for sex discrimination). They could also be arrested for aggravated trespass.

I do agree that this ruling will not necessarily stop all this in its tracks and further legal challenges will be necessary until it sinks in. I also would say that the GRA issue is complicated by the fact that there are weighty privacy clauses attached to having one.

For single sex space anywhere to be allowed it must meet the requirement for single sex exemption under the equality act. And then it must be single sex - no men. Workplace single sex spaces meet those requirements but predate them.