Interim guidance from EHRC is out, thread 2

[Darkgreendarkbark]

Unless someone has beat me to it? Seemed like an animated discussion still going, if anyone wants to continue. I wanted to reply to Cautious Lurker who said it was for society to uphold the law and stop people going into the wrong facilities. My post (before the thread filled up) was going to be:

Well, may I nitpick - it's down to service providers and employers. They are the ones subject to this law. It's not "for us as a society" to ensure that individuals follow the rules that service providers and employers bring in so that those organisations may comply with the law. I'm all in favour of the law, but it's not on my shoulders to uphold and enforce it in every leisure centre and office block. We did all the hard work of campaigning and crowdfunding just to get the law itself clarified. I can now just use my voice to complain to the provider if my single-sex space turns out not to be. Because the law is on our side.

Granted and I don’t disagree… but service providers and employers have been pretty unreliable in understanding and complying with the law. And I don’t feel it down to women to police, but both men and women to hold those organisations to account?

We’re probably agreeing with each other but talking at cross-purposes?

Perhaps, yes! I'm all in favour of holding them to account. They have been unreliable, but they've had authoritative voices telling them they had to allow self-id. Now they know they don't have to listen to those voices. I hope most will be quietly relieved.

In terms of reporting individual incidents, for me I'd want any inappropriate behaviour dealt with immediately, no "oh but you should just avert your eyes from her penis, there's no man there", more like "we will get security on it right away". Something like "there's a young woman in the men's section" I do think is more delicate, it's not a predatory situation, just a bloody awkward one, and one where the risk goes the other way. I don't know how a service provider should best deal with it in the moment, but I do think it's a different kettle of fish, and hopefully one that will go out of fashion. I'm not sure how keen transmen are to use male facilities anyway. In my limited experience, they tend to avoid it. Access to men's spaces certainly isn't their driving force.

Can I get some opinions on the Nottingham Women’s Centre? They say they are still trans inclusive and are for all self identifying women. Can they run a service which includes women and some men legally now? Or would this be open to challenge by men who are excluded?

Yes, correct - they can restrict entry to women, but not to women+some men. That's unlawful discrimination against the men who don't claim to be women and the organisers are currently not operating a single sex service.

it will b interesting to see the fallout from this, either mixed sex or back to how it was in the 80s.

This one always confuses me, to be honest. Maybe I need to go back and reread the judgement. Where my brain gets stuck is - the PC of gender reassignment only works one way, right? So it's presumably always fine to exclude someone for not having that characteristic. So what makes it any different to saying "This club is for women, and also men whose star sign is Pisces" or any other random subset of men? Would a "woman and Pisces men" club be unlawful? I am probably missing something but my brain always falls down at this part.

@Darkgreendarkbark yes, as I understand it you can’t include ‘some men’ but not all men. So it is either a club for women (and no men allowed at all) or it is a mixed sex group in which case you cannot discriminate men who are NOT Piscean by excluding them, so yes, a club for women and pisces men would be discriminatory - and non Piscean mean can bring a case against the club?

You could however hold a club that is just for Piscean men and women… that would not be discriminatory as men and women are included/excluded on the same basis (and not being Piscean is not a protected characteristic).

Article from the Times

"Unisex lavatories risk ‘discrimination against biological women’ - The EHRC has warned shops, pubs, restaurants and cafés that after the Supreme Court ruling, failure to provide single-sex facilities may leave them open to legal challenge"

https://archive.is/NLwwD

I think that may be open to interpretation @KnottyAuty ? Lots of small local cafes where I live have only one customer toilet. So it is both a single sex space (as only one person can use it at a time) and a unisex space (as persons of either sex can use it). I suspect SMEs will move towards single usage spaces on this basis as they will struggle to provide 3 separate facilities given the restraints of space and funding?

Thanks Knotty.

Pat McFadden, Sir Keir Starmer’s Cabinet Office chief, confirmed that Whitehall would now bar transwomen from using women’s lavatory facilities.

Isn't it more accurate to say that claiming to provide single sex facilities which are in fact mixed (include biological males, which includes trans females) is open to legal challenge. Since to have been providing single sex facilities there would either have to be discrimination which was proportionate because of the protected characteristic of sex, or a legal requirement to have single sex facilities. Such as Health and Safety at work legislation. If its proportionate to provide single sex facilities and you choose not to (say ah, well its too difficult let's all be mixed its easy) then you could be legally challenged? Particularly if you used to call the space single sex but now do not (since SC judgement) with no change to risk factors etc.

The one toilet, one user at a time scenario is perfectly fine.

Many cafes, shops etc. (especially small ones) will provide one unisex self-contained toilet). They can continue to do this. They cannot be required to conjure up space for extra toilet facilities and in most cases it would be impossible to do so.

Cross posted. (I don't think you would call a unisex space a single sex space - it does not matter what your gender ID is or whether you have one at all).

Ah... I think it's clicking - thank you! It makes sense when you say it's not discrimination if "men and women are included/excluded on the same basis". While my Pisces example was a deliberately silly one, I can imagine more serious examples which would undermine sex equality, like "this club is for all men, and also for, er, women called John", or "voting is for all men over 18, and also for women over 30". I suppose in those examples, women are being held to a different standard or indirectly excluded, whereas in the "women and trans women" scenario, it's usually less clear how men are disadvantaged, which might be what throws a spanner into the works of my brain. But I suppose things like women only prizes and shortlists are a clearer example where men who aren't trans would be missing out.

Be prepared for me to ask this question again when the logic next falls out of my brain 😅

Yes, I think the issue will now be where businesses have two single-use spaces that have, until now been a mens and a women’s loo. They will now both have to be unisex?

@Darkgreendarkbark its the playing around with language. If transwomen were described as 'trans identified men' then it would be more evident that we were not talking about women. It works really well to confuse. The discussions that are happening post-SC must (surely) be peaking a lot of people who have been averting their gaze from this and trying to ignore. The sheer number of things that it affects is running counter to claims that its just about where people pee.

Yes a lot of it is just confirming what Document T (2024) says. If you have 1 toilet then that’s fine to be a universal one. You can’t have every toilet being universal, single sex toilets come first. Then there’s ambulant toilets (bigger, for frailer people) as well depending on size of venue. These are different from accessible toilets (disabled).

Unisex toilets are pretty efficient from a business point of view (less queuing) so if there is a mens and womens toilet facility separately labelled and different locations then this is perhaps because of a reason peculiar to that business (most don't have 50:50 male/female workforce).

If these exist then they can remain the same as before as long as they mean it (i.e. the female is biological female and not +transwomen). As there is only one person in the 'toilets' at one time its probably not that affirming a space, or one where embarrassment of encountering others is likely.

Thinking of some places where the women might want a toilet which is apart from the mens because of complaints about it being messy. smelly, etc.

So potentially it may be easier for some businesses to close their second loo so that they can be compliant with one single use facility rather than get tied up in red tape? Because previously they had two single sexed spaces but now need to offer an additional unisex one. Or am I overthinking?

It's fine to have two unisex universal toilets. According to this https://www.gov.uk/government/news/new-building-requirements-for-separate-male-and-female-toilets you are to avoid mixed sex and you can offer universal toilets (those with wash basin in the cubicle as unisex) as well as or instead of single sex. As the universal toilets take up more space and cost more than the single sex cubicles+sink area many new spaces could choose single sex designs rather than unisex.

The new legislation affects new buildings and major refurbishment only.

@Darkgreendarkbark
IANAL, but as I understand it, the EA starts from the premise that there can be no exclusion from anywhere on the grounds of any of the PCs.
Men with the PC of GR are a subset of men.
If a single sex space is justified as a proportionate means to a legitimate aim, all men must be excluded - gay, straight, with or without tg identity. Ie all men, with or without any other PC. If you include a subset of men, you can't exclude any other men, because you are now not operating a single sex space. So the non-GR men can say this association is for everyone, not just women, so why can't we join/enter? That's the unlawful discrimination part.

I think that's the logic. IANAL.

ETA: Gah. Cross posted.

No. They can stay as they are.

Where are you getting this from?

Most provision is already single sex and offered on the basis of male/female. The judgement just clarified that males cannot use the female space and vice versa.

There is no need to provide extra unisex provision except in exceptional cases which are as yet unspecified.

H&S regs require single sex facilities for employees and the number is specified according to sex.

No, that was in the lead up to this, Document T which came out in 2024.
https://www.gov.uk/government/publications/toilet-accommodation-approved-document-t