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.

@PlanetJanettehas already thrown all trans people without a GRC under the bus by hanging her argument on the GRA. While I might suggest that she is being a little transphobic by doing that, it doesn't help to advance an analysis of her constitutional argument.

I agree that where a new Act is passed, it overrides any previous Act unless it specifically doesn't. So far, so good. The Sex Discrimination Act 1975 defined men as males of any age and women as females of any age.

The Workplace Regulations 1992 required the sex segregation of toileting and changing facilities. This could only mean men are male and women are female.

The GRA 2004 declared that an acquired gender would be applied for all reasons. This could mean that men with a GRC are female and that women with a GRC are male.

The Equality Act 2010 repeated the definition of a man as being a male of any age and a woman as being a female of any age. This means that man means male of any age and woman means female of any age. This replaced the GRA definition.

@PlanetJanette's principle of 'last up, best dressed' would suggest that a GRC don't count for shit when it comes down to workplace facilities.

I'm sure that @PlanetJanetteis panting like a greyhound out of the slips to prove me wrong in a court of law.

They're not at all confused. You're making my point for me.

The Equality Act 2010 came after the GRA 2004. So it is entirely rational and in keeping with normal statutory interpretation that if there is a conflict between the two, the courts determine that Parliament intended the more recent statute to prevail.

The same is not necessarily the case for a preceding statute.

I mean the first and main reason is that there is explicit statute saying that a trans man with a GRC is for all purposes a man, and a trans woman is for all purposes a woman, without any explicit carve out for the Workplace Regulations.

This is in spite of the fact that standard Parliamentary legislative process is that if you do not wish to impliedly repeal prior inconsistent legislation, or for definitions not to apply in respect of prior legislation, you need to do so explicitly because of the doctrine of implied repeal. And in spite of the fact that Parliament actively considered specific and explicit exclusions and chose not to include the Workplace Regs in their exclusions.

But again, you keep missing the point I am making. I am not saying the courts would never interpret the Workplace Regs as applying only in respect of biological sex. In view of the direction of the Supreme Court and some of the leaps in logic in their judgment it's entirely possible they will. But it is also entirely possible that they will not. My point is that those claiming the matter is settled are wrong.

@VivaDixie
Despite the fantasies of transpeople, the SC confirmed sex = biological sex and where facilities are SS men can't use the female facilities.

The Workplace Regulations 1992 required the sex segregation of toileting and changing facilities at work. You may find it helpful to contact Sex matters as they will be able to assist you.

Thank you @Chariothorses

Your post is a good example of many posters on here who are simply ill equipped to consider legal issues.

I haven't thrown anyone under the bus. I have read a judgment. Read legislation. Understand statutory interpretation. And pointed out that those claiming that this matter is settled law are simply wrong.

None of that has any reflection on what I think the law ought to be. It would be possible to be as GC as they come and still be able to see that the legal position was not definitively resolved in respect of the Workplace Regs. You can be entirely supportive of trans rights, as I am, and still recognise that the law affords more rights and protections to those with a GRC than without, without it implying that you agree with that state of affairs.

That inability to separate out what the law is and what you would like the law to be is one reason so few posters on here seem capable of discussing legal issues.

You missed a bit.

the SC confirmed sex = biological sex for the purposes of the Equality Act 2010.

Not necessarily for any other statute.

No, you’re wrong. And you don’t seem to have any legal background, do you? As for your assertion that newer legislation overrides older legislation, that’s a total legal howler. Unless repealed, all legislation is valid. Doesn’t matter if it was passed in 1725 or 2025.

The central problem with your position that the definition of sex relates to the EQA only is that this relates to sex discrimination. If a woman is being discriminated on account of her sex by the misinterpretation of sex in other legislation, then she will succeed in her claim. So good luck with asserting that an interpretation of certificate sex in the workplace regulations doesn’t end up discriminating against actual women. If a rule is being implemented that discriminates either directly or indirectly on women on account of her sex, then that’s all it needs to succeed. Allowing men with a GRC to be included in the provision of female-only services won’t be a valid defence. And as for self ID, it holds zero water. Bye-bye ´Janette’

But wouldn't you be invoking the equality act when you are talking about single sex spaces? There can't be a single sex without invoking the equality act. That's what it's there for. To allow a single sex space to exist.

I agree that there was ambiguity about how the GRA interacted with the Workplace Regulations and the Sex Discrimination Act (and later the EA). The SDA and the EA are the legal mechanism which permits the segregation of facilities by sex, not the Regulations in themselves.

The FWS scotland case removed that ambiguity. No further rulings specific to the Workplace Regs are needed now the Supreme Court has clarified what the EA means for sex segregation.

ETA Your lack of reply to my previous posts implies your agreement that this argument poses a significant stumbling block to your hypothesis.

I think you need to read carefully what I wrote. I have not said that newer legislation overrides older legislation. I said that where these is a conflict between newer legislation and older legislation, the doctrine of implied repeal means the former takes precedence, with some limited exceptions like constitutional statutes.

Now either you didn't read what I wrote, or you did and still think I am wrong to accurately describe a key part of UK constitutional interpretation. Neither of which speaks very highly of your ability to engage critically in these issues.

The Supreme Court ruling does not represent new legislation, of course, it merely clarifies existing legislation. Supreme Court rulings are binding on all lower courts.

This isn't true.

Do you think that there was no ability to have single sex spaces before 2010? The legal mandate for single sex toilets and changing facilities comes from the Workplace Regulations 1992.

So if an employer chooses to adopt a trans inclusive bathroom policy as the OP's employer has, it would be on the basis that the Workplace Regulations allow them (or arguably mandate them) to do so, not on the basis of the Equality Act.

Workplace regulations state that employers must provide single sex accommodations for employees, unless the provison is of the single oocupancy with integral washbasin type.

"Workplace regulations require employers to provide single-sex facilities for staff. Specifically, the Workplace (Health, Safety and Welfare) Regulations 1992 mandates separate facilities for men and women, including toilets and changing rooms, unless each facility is in a separate, lockable room used by only one person. This requirement is for reasons of propriety and applies to all workplaces, not just public ones."

But this isn't just about the permissability of single sex provision. I have not doubted that the result of the Supreme Court case is that service providers - and probably employers - may provide single (biological) sex toilets and changing facilities.

The OP is about whether they are mandated to do so.

And the mandate for single sex provision comes from the 1992 regulations, not from the Equality Act. OP is not arguing that their employer has the freedom to have a trans exclusionary policy, they are arguing that they have a duty to do so.

That position is simply not settled by the FWS case, no matter how much people insist that it is.

Yeah, welcome to page 1 of the conversation. Thanks for your contribution...

Now try reading the rest of the thread.

Employers who do not provide compliant facilities could subject themselves to loss of public liability insurance; and furthermore permitting male people to persistently use facilities which are designated single sex ( for females) could bring about a 'Sexual harrassment' charge. -which I'm sure most companies would be keen to avoid.

I still disagree with your interpretation - help me understand.

If segregation/apartheid is generally unlawful in the UK, what was the legal basis for allowing segregated the single sex facilities in the 1992 Workplace Regs?

...have you tried reading the full thread?

Do you disagree with my interpretation or do you misunderstand my interpretation.

If you disagree, fair enough.

If you misunderstand, I think the premise of your question is the wrong one to help you understand.

When the workplace regulations were written in 1992......trans ideology wasn't the thing it became in more recent years....and common sense dictates that 'Sex' refers to biological sex. Nobody can change sex, and the word 'gender' is not interchangeable with 'sex'.

I'm not sure why you are so keen to find a way to circumvent the ruling and in so doing knowingly violating female boundaries? Can you explain?

I imagine a few test cases will settle things back down to approprriate and workable reality

Here is a useful explainer on why employers who permit mixed sex facilities could be opening themselves up to discrimination cases:

https://taylorwalton.co.uk/insights/the-provision-of-single-sex-facilities-in-the-workplace/

The Supreme Court’s judgment determined that references to “sex” in the Equality Act 2010 are to a person’s biological sex only and not, for example, to their certified sex.

Following this reasoning, it is highly likely that the references to “men” and “women” in the Regulations are also to biological sex only. However, in any event, the exemption at paragraph 1(1)(a) of Schedule 23 of Equality Act 2010 exempts employers from liability where they do anything “in pursuance of an enactment”. Therefore, employers who provide toilets, washing facilities and/or changing rooms on a single-sex basis by reference to biological sex only can comfortably rely on this exemption in response to accusations of sex or gender reassignment discrimination.

The subsequent interim guidance issued by the Equality and Human Rights Commission (EHRC) further clarifies that this means that trans women (biological men) should not be permitted to use women’s facilities and that trans men (biological women) should not be permitted to use men’s facilities.

Employers who were to provide these facilities on any other basis – such as allowing individuals to use facilities which correspond with their acquired or self-identifying gender – could not rely on this exemption if they were challenged by workers who objected to sharing facilities with members of the opposite biological sex.

And a legal opinion piece on why the approach taken by the SC to define sex in the EA2010 is likely to also be taken to define sex in the Workplace Regs:

The crux of the question which the Court addressed in relation to the Act was whether section 9(1) of the GRA, which provides that a person’s sex becomes the acquired sex for all purposes, was disapplied by the Act pursuant to the carve out to the general rule in section 9(3) GRA. The Court held that the Act did fall within section 9(3) and so sex was biological sex. In so holding, it gave general commentary on the meaning of the crucial section 9(3) wording.

It held that a piece of law can fall into the exception even if:

• it doesn’t have express wording to say that it does (the Act does not have such wording);
• it was enacted before the GRA (as in the case of the Health & Safety Regulations); and
• it doesn’t reach the relatively high threshold of necessary implication.

Instead, what one must assess is “the wording, context and policy of the statute in question. It is likely to be unhelpful for the coherence of the law to impose a stringent test for the application of section 9(3)” [108]. The Court later says ([156]) that section 9(3) applies where “the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1)”.

In conclusion, while FWS did not explicitly address the Health & Safety Regulations and their definition of women and men, it set out an analytical approach to their statutory interpretation and a logical framework of argumentation with respect to the Act which can equally apply to the Health & Safety Regulations. This has not (yet) been the subject of direct and explicit determination by the Court, but it is hard to see the courts or tribunals – in light of FWS – suggesting that the definition of men and women in the Health & Safety Regulations differs from the Act, i.e. it is biological for both.

More generally, if it were to be found that the Health & Safety Regulations did mean certificated sex, then this would create significant confusion and inconsistency, and it seems unlikely that – absent very clear wording in the Health & Safety Regulations or other law about certificated sex (which is not there currently) – they would risk the fallout from such an interpretation. As the Court in FWS put it: “Indeed, it would offend against the principle of legal certainty and the need for a meaning which is constant and predictable, especially in the context of an Act with the purposes we have identified, and which has such practical everyday consequences for so many individuals and organisations in society” ([175]). The Court was talking there about consistency intra the Act, but it is an observation with equal force as a public policy desideratum inter leges.

www.doyleclayton.co.uk/resources/insights/do-workplaces-need-to-provide-single-biological-sex-toilets/

Do you think that there was no ability to have single sex spaces before 2010?

I don't mean the ability, I mean the legal framework around them.

You're not allowed to discriminate on the basis of sex.

Therefore if you have a single sex space, you are discriminating. And the only way you can do it is because equality act specifically allows for some exceptions to that discrimination.

Is that not the case?

Legally, of course trans people can change sex. That's the whole point of this discussion. The GRA says their sex becomes for all purposes that of their acquired gender.

No.

If the Equality Act was never passed, or was passed without single sex exemptions, the Workplace Regulations would continue to be the basis for employers to have sex segregated facilities.

And indeed with or without the Equality Act, it is the 1992 regulations that mandate those single sex facilities. So when we talk about what that mandate means, it is the 1992 Regs and their interaction with GRA2004 that is relevant.