Please help me send an email to our Chief Exec who has announced they are ignoring the Supreme Court

[VivaDixie]

I feel I have to do something about this - even just a carefully worded email.

Background: I work in a large well known, well respected white collar organisation. Historically it was very stuffy and male, but in recent decades it has become more inclusive.

This may be v outing but yesterday the very stuffy male Chief Exec announced in an all organisation Teams meeting that - basically - they are ignoring the SC ruling and said that trans colleagues can use whatever toilet and changing room they want. He had all the #bekind #beinclusive vibes. He reminded us all we have to be inclusive for all, clearly women don't come under that umbrella. Made lots of noises about 'we will all have different views on this as its a sensitive subject' bla bla

He made some waffle about how they are reviewing the matter and haven't made any final decisions, but - and this is crucial - that they have already taken external legal advice. I believe the crux of it is that they don't want to change the toilets and want to be seen to be inclusive.

This was one of those teams meetings where you can't put your hand up but there is an anonymous Q&A at the end - I didn't get a chance to put a Q in as I was blindsided and didn't know what to ask without sounding like an idiot.

So I intend to email the Chief Exec office and need to think about what to say. I want to keep it brief but I am thinking of getting the following in:

1. They say they have sought independent legal advice. How has this legal advice aligned with the SC ruling in terms of the fact that allowing trans colleagues to use whatever loo (and more crucially changing rooms) they like has always been but is now confirmed as unlawful
2. They say they are inclusive of all - how does this protect women's rights to safe spaces
3. The toilets are not self contained - in that they have floor to ceiling cubicles but the sinks are outside the cubicles. (Mumsnet - am I right that if you are essentially making these mixed sex then that set up is now unlawful?)

My questions are clunky but I am going to think over the weekend how to articulate this. If anyone has any ideas that would be much appreciated.

The toilets are not self contained - in that they have floor to ceiling cubicles but the sinks are outside the cubicles. (Mumsnet - am I right that if you are essentially making these mixed sex then that set up is now unlawful?)

Yes, that's correct. H&S regs.

https://www.hse.gov.uk/simple-health-safety/workplace-facilities/health-safety.htm

Employers have to provide facilities suitable for any worker, including those with disabilities, which includes:

• enough toilets and washbasins for those expected to use them – find out how many
• agreed reasonable adjustments for workers with disabilities, for example, a worker with prostate cancer
• separate facilities for men and women, except where each toilet is in a separate room lockable from the inside
• for female workers, somewhere to dispose of sanitary dressings

Also do this. They are collecting all this stuff and may also be able to offer further advice.

Exactly this.

I wouldn’t go with the building regs aspect - building regs apply to new construction or structural alterations.

Definitely agree with the Workplace Regs aspect - from your description the toilets don’t meet the requirements for them to be classified as mixed sex.

This information from an Irwin Mitchell employment lawyer will be helpful:

Single sex toilets and changing rooms – employees

The single and separate sex provisions set out in the Equality Act do not apply to workplace toilets or changing facilities (unless they are jointly used by customers or other service users). Employers have to comply with the Workplace (Health, Safety and Welfare) Regulations 1992 which stipulate that:

• separate toilet facilities are available to men and women unless each toilet is in a separate room with a lockable door (which should be floor to ceiling and contain its own washbasin) (Reg’s 20 and 21); and

• changing rooms provided to enable employees to change into and out of their work clothes are segregated by sex (Reg 24)

Sex in this context is not defined but is highly likely to mean biological sex. It’s true to say that the Supreme Court didn’t expressly consider these regulations in its judgment which focused exclusively on the interaction of the Gender Recognition Act 2004 and the Equality Act 2010. But, the way it reached its decision on that issue is instructive.

Generally, someone with a GRC changes their legal sex for ‘all purposes’ (s9(1)). However, that is subject to exceptions made by the Act or in any other act or subordinate legislation (s9(3)). The Supreme Court said someone’s legal sex doesn’t change for the purposes of other legislation if it would make that legislation incompatible or unworkable.

The 1992 Regulations were put in place to implement a 1989 EU Directive about health and safety and deal with ‘propriety’. The Supreme Court recognised that females, as a biological sex class, have a health and safety interest in being separated from biological males and it’s difficult to see how interpreting sex in the 1992 Regulations to include people with GRC’s would not render their purpose unworkable for the same reasons the Court identified in respect of single and separate sex spaces in the Equality Act. Plus, it would put the Regulations at odds with the single and separate sex provisions in the Equality Act which would lead to absurd results – particularly if the same facilities are used by customers.

What are the legal risks if you get this wrong?

If you have separate toilets or changing facilities for males and females but allow staff to choose which one to use based on their gender identity, you face the same risks as identified above [You could be sued by employees who object to sharing facilities with members of the opposite sex; and by people of the opposite sex who also want to access the facilities]. However, unlike customer complaints, your staff can bring claims in the employment tribunal for discrimination. And they can do that whilst continuing to work for you.

https://www.theretailbulletin.com/retail-solutions/legal-do-retailers-have-to-provide-single-sex-toilets-and-changing-rooms-for-their-customers-and-staff-19-05-2025/

My main advice is to work out what 2 or 3 points are most signficant and put them forward in their own, relatively short, paragraphs.

The longer your email, the more cherry-picking and evading difficult questions you'll encounter.

Timely thread. If you do want to challenge, send him this article maybe. https://www.mumsnet.com/talk/womens_rights/5349543-nhs-chiefs-forced-to-rip-up-trans-guidance-telegraph?utm_campaign=thread&utm_medium=app_share

This is really good advice on structuring these emails generally.

I also like the suggestion by@Shedmistressas a preliminary to test whether you're going to get honest engagement or game-playing.

I agree - he is the type to respond full of obfuscation

@SabrinaThwaite that was excellent thank you - I can take many points from that

Perfect.

@Ereshkigalangcleg I think that's useful but I know he would respond to state that our toilets and changing rooms are for staff only and not the public, but I will have another look and see if I can work this into my email. It shouldn't make any difference but that is what he will say.

It really is a very clear and concise article. I forgot to C&P this bit - might be useful too:

I suggest that you avoid sending out messages which express sympathy with one protected group as you will expose your organisation to charges that you are partisan and have ‘picked a side’. And these sorts of communications will be disclosable in any legal proceedings and will be used by your opponent to undermine your credibilty.

If there is a recording of the Teams meeting then it would be worth hanging onto it.

I'm waiting for this to come through - it will be in about a week, but yes I will wait for that then email them as I want to get his exact words

The health and safety at work act specifies toilets must be segregated by sex unless it is a small business.

It is also sex discrimination and possibly religious discrimination, they have created a workspace that some religious women will not be able to use them.

I think they are opening themselves up for litigation (not a lawyer) because the law is the same as it was last week, last year, last decade but a lot of guidance gave the wrong information but now the SC has clarified the law and the EHRC guidelines have changed.

Good luck.

I like this.

If he is going with the ‘inclusive to all’ angle… How are those fully enclosed toilets inclusive to those with long term health conditions including disabilities like epilepsy? The toilet is, after all, the place people go to when they feel ill, so it is common to find bodies in toilets. That’s why doors in Document T have to have a mechanism to open the door outwards from the outside.

Science bit:
Medical Safety
If you feel nauseous or ill you are likely to head to the toilet. If you collapse, you are more likely to survive, or avoid suffering long-term damage, if someone notices and rescues you.

There are known medical reasons for a disproportionally high frequency of cardiac arrests and strokes while an individual is in the toilet. There are no UK numbers detailing where people collapse. However it is known there are around 100,000 hospital admissions due to heart attacks in this country, equating to one every five minutes. It is estimated there are 400,000 people in the U.K. with undiagnosed heart failure.
There are also around 100,000 strokes in this country, equating to one every five minutes.
Around 1% of people in this country have epilepsy and around 80 people are diagnosed with epilepsy each day. There are many other conditions that lead to collapse where you need to be noticed and accessed quickly eg. diabetes and asthma.

If they change the toilets, they need to conform now to Document T. If the doors have door gaps they have to be single sex due to building regulations. I have had that confirmed by HSE.

You are welcome to use this picture to illustrate the point that he is not being ‘inclusive’ to vulnerable people at the moment.

I think that the points would be good in the follow up once you have seen the policy.

The response I suggested gives no ground as to whether you think it is legal or illegal, and doesn't out you in any way. Save the detail and how the policy doesn't meet minimum requirements once you know what it is.

Report to EHRC.

Talk to Sex Matters.

Contact JK Rowling and sue the crap out of them.

Yes. Despite the claimed “legal advice” I imagine they might balk at spelling it out in detail in writing.

I agree. I'm a fan of getting people to spell things out themselves.

I’m also watching and waiting in my workplace, I will be using the H&S at work regs (which should have been much more at the forefront but the SC ruling really helps use) and keeping it quite simple. To start with. I’m nervous but I will raise it if they don’t apply the law correctly.

It’s worrying though that if a company seeks legal advice in good faith, and applies it, that it could be wrong.

There’s a good template letter on the Sex Matters website.

General question: I seem to remember that (Sex Matters?) offered a service whereby they could email your organisation on your behalf. This meant that
a) there was a very public record of the organisation being informed that they were in breach of the law
b) you could get this stuff raised in your organisation while remaining anonymous. We shouldn’t have to worry about this, but atm we still do,

If this wasn’t Sex Matters, then I’m sure someone will be able to update me, and if I have misremembered, we need this!

That's interesting thank you @DragonRunor

Have you got footage or evidence in writing? Are they a household name? If so anonymously send it to the Times.

If that seems harsh you could try sending him a link to Tanya de Grunwald’s podcast with the CEO of Severn Trent. And say that to your chap that he is at risk of ET Claims from female employees. Is there maybe not another way involving third spaces and encouraging allies to use those to avoid “outing” for a balanced solution? It doesn’t have to be one or the other?