EHRC clarification on SC judgement - workplaces

[ArabellaScott]

https://www.equalityhumanrights.com/media-centre/news/clarification-workplace-facilities-added-interim-update

Clarification to interim update:

'In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. Where changing facilities are required under the regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities such as separate lockable rooms.

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets. These can be single-sex if it is a proportionate means of achieving a legitimate aim and they meet other conditions in the Act. However, it could be indirect sex discrimination against women if the only provision is mixed-sex.

In workplaces and services that are open to the public where separate single-sex facilities are lawfully provided:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided'

IMO they need to write this more clearly:

'Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. '

Each individual facility needs to be in a separate room, if its to be mixed sex. I.e. each toilet and washbasin, each shower, each changing room. It may sound pedantic, but this level of detail and clarity appears to be necessary.

"IMO they need to write this more clearly"

I picked up on the same issue re. individual rooms. The EHRC need to be crystal clear and leave no ambiguity. TRAs are latching onto any small thing to try to twist to get their way. Another one is the use of "should" rather than "must".

I think it would make it clearer if they said single user facilities can be used by both sexes and then described what qualifies as a single user facility

Agree.

Yes, I think it is important to stress separate room, not just a separate cubicle in a larger communal facility.

I think we need diagrams. And those easy read versions.

Not only do we have activists being deliberately obtuse and pretending not to understand, and wilfully misinterpreting everything, but the public, employers, service providers need to understand without a doubt.

Think I like wording along the lines of "self-contained room (not cubicle or stall) with floor to ceiling walls and with a lockable door"

Having said that, for reasons many posters have given previously, I believe such self-contained rooms are not a good idea as they raise their own safety issues.

I think they need to make clear that where single sex facilities are required by legislation other than the EA then those facilities can only be provided by making use of the EA SSE.

So many TRAs are saying that toilets required by the Workplace Regulations can be provided on a gendered basis since the SC ruling was only about the meaning of sex in the EA

I would like classifications on who is responsible for ensuring that this is happens:

trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex

Also, what are the consequences for organisations who do not protect people's rights to dignity and safety via privacy from the opposite sex? Is this always in a case-by-case basis through individuals sueing organisations?

That is the point of the whole clarification. It seems very clear to me! But maybe, yes, if we need to join all the dots.

Another one is the use of "should" rather than "must".

"Must" means that the action is mandated by legislation and is legally enforceable. If you don't do it then you are breaking the law.

"Should" is advisory and means that is action is recommended, eg. via Guidance, in order to comply with the law.

Statutory Guidance carries greater weight than non-Statutory Guidance when taken into account by the courts.

Guidance can be wrong, as with EHRC Guidance on the Equality Act for the last 15 years.

I worked in the disability field and we had excellent training from Michael Mandelstam. His advice was always to go back to the primary legislation if you wanted to argue with a Council or NHS Trust that they were not meeting their legal obligations.

If an organisation or person chooses NOT to follow Statutory Guidance and do something else, they need to prove that what they are doing still complies with the law. It might do or it might not.

• If it DOES comply with the law then it does not matter that they are not following the guidance.
• If it does NOT comply with the law then they need either to follow the Guidance or do something else which does comply with the law.

https://www.hachette.co.uk/contributor/michael-mandelstam/

Some other examples and info that might be helpful:

The Highway Code

Many of the rules in the Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison. Such rules are identified by the use of the words ‘MUST/MUST NOT’. In addition, the rule includes an abbreviated reference to the legislation which creates the offence. See an explanation of the abbreviations.

Although failure to comply with the other rules of the Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see The road user and the law) to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’."

https://www.gov.uk/guidance/the-highway-code/introduction

Statutory guidance

Statutory guidance is guidance from governments. It is written to help agencies do what the law says they need to do. Education (schools, nurseries, colleges), health services and children’s services are all examples of agencies. Statutory guidance will explain which agencies the guidance is for.
The courts have said that agencies ‘must have regard’ to statutory guidance. This means they should follow it, unless there is good reason not to (R v Islington LBC ex p Rixon [1998] 1 CCLR 119).

Examples of statutory guidance that applies to children’s services departments include:

• Working Together to Safeguard Children
• Family and friends care: statutory guidance for local authorities.

https://frg.org.uk/get-help-and-advice/a-z-of-terms/statutory-guidance/

When is guidance ‘statutory’ and does it matter?
Allan Norman analyses the status of 'guidance' and the wider implications of a 2012 High Court ruling, including for the childcare field.

https://localgovernmentlawyer.co.uk/governance/314-governance-a-risk-articles/16316-when-is-guidance-statutory-and-does-it-matter

Difference Between Laws, Regulations, Acts, Guidance & Policies

Summary:

Laws, regulations, acts, guidance, and policies are terms that are often used interchangeably, but they have distinct purposes and applications. Laws are rules enforceable by courts, governing state administration and citizen interactions. Acts are formal laws passed by legislative bodies, while regulations provide detailed instructions to enforce these laws. Guidance offers recommendations on how to comply with regulations, but it is not enforceable. Policies, set by organizations or governments, outline expected behaviors and goals, often supported by laws. Key differences between terms include the scope, enforceability, and origin, with laws and acts being legally binding, unlike guidance and policies.

You have heard of laws, regulations, acts, guidance and policies. The terminologies imply almost the same meaning. So, you may need clarification regarding their actual purposes. Even though they are synonymous, each has a different definition and application. However, they are contingent upon each other when you apply them to or comply with them in the real world! Let us take a comprehensive look at each of them and understand the ins and outs of laws, regulations, acts, guidance and policies.

https://www.oneeducation.org.uk/difference-between-laws-regulations-acts-guidance-policies/

Possibly "either sex" rather than "both sexes", to emphasis the single use aspect and avoid confusion with "both at the same time"?

It’s started already

As predictable as ever:

https://goodlawproject.org/ehrc-formally-abandons-single-sex-toilet-stipulation/

'The EHRC has now formally abandoned its contention that employers must provide single sex toilets following the service by Good Law Project of its claim for judicial review.
Its initial position, which it rushed out in the aftermath of the Supreme Court decision, and which can be read <a class="break-all" href="https://web.archive.org/web/20250613211538/www.equalityhumanrights.com/media-centre/interim-update-practical-implications-uk-supreme-court-judgment" rel="nofollow" target="_blank">here, states that “In workplaces, it is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.”
Its revised position, issued after Good Law Project served its claim form, abandons that assertion and instead concedes that
“In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers. Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside.”'

I assume the bolding is from the GLP, although they don't say.

They're going to have to work jolly bloody hard to present that as a win.

I agree with you that's it clear but I think there needs to be something included in the ECHR guidance saying this.

This post by @Keeptoiletssafe is a bit of an eye-opener:

https://www.mumsnet.com/talk/womens_rights/5341213-can-we-lay-this-to-rest-once-and-for-all?page=2&reply=144572232

An extract:

"The reason I go on about it is that door gaps were ‘missed out’ in the specifications of Document T. The HSE say that single sex toilets can have door gaps, they are just not mentioned and I realise it’s an oversight now. The document says unisex ones have to be enclosed. However, as I keep saying, the group that was paid by the government and supposed to look designs for safety for disabilities and long term health conditions didn’t even consider diabetes, epilepsy, heart attacks, heavy periods etc. which would have brought the gaps in doors to attention. They based their evidence that toilets should be enclosed on the opinion that transactivists in ‘trendy nightclubs’ in New York preferred them. They talked about non binary crotch heights which is not in their remit. Periods were only referenced at the back in terms of transmen. It’s all there in the documents. I have come to find that anything that says ‘inclusive’ design means private design. There are certain architects who are pushing this and it’s changing the manufacturers output. Typically you will get a document saying the reasons we have door gaps is for safety but we are going to enclose them so they are gender neutral. This is all fact. I haven’t got an agenda other than keeping toilets safe. The toilets designs in Doc T were scuppered as everyone was focused on one ‘group’. The design company, that didn’t look at the most common long term health conditions, won a Stonewall award.

What needs to happen, is to analyse health and safety v privacy to get the optimum solution. It is incredibly frustrating that transactivists are now getting vocal about disabled toilets when I can show what happened with Document T. Why are toilets so important that a health and safety measure for everyone is ignored?

Why do you think people in trendy nightclubs in New York should be so influential for the design of toilets in this country? I can imagine the attractiveness for the enclosed nature of the toilets there as American toilets are much more exposed for things going on in trendy nightclubs. They have never done safety assessments on these designs."

========

There is a lot of reasoned debate and disagreement on that thread before you even get to that post, which makes the whole thread very useful.

Can someone explain to me how the fox murderer is trying to spin this as a win? In version 1 Shon Faye (other transwomen whose DMs Jolyon claims to slide into are no doubt available) can't use the women's facilities. In version 2, Shon Faye can't use the women's facilities. How is this a victory for gender ideologues?

I'd like to have seen them reference HSE guidance (so should, not must) which says:

where possible, separate facilities for men and women _ failing that, rooms with
lockable doors;

https://www.hse.gov.uk/pubns/indg293.PDF

Also Document T which applies not only to new buildings but also building works on existing buildings, and so should prevent employers and service providers from replacing single sex cubicles with unisex lockable rooms.

https://assets.publishing.service.gov.uk/media/67167c02d100972c0f4c9b38/ADT_2024.pdf

Looks like you might need to threaten them with a Judicial Review 😵‍💫

I haven't finished completing the Consultation Survey. Is there somewhere where that recommendation would fit?

It's workplace and building regs, not the EA, so I don't know how it would fit but I think it's worth mentioning.

Help please!

When I go to the link https://www.equalityhumanrights.com/media-centre/news/clarification-workplace-facilities-added-interim-update I can read a short statement with no details as in OP.

The link on the right that says download pdf seems to be the short notice but with the pdf set to print?

I am bewildered.

And much as I trust FWR it is impossible to share the contents of this update if it is not linked to a EHRC link.

ie what is the link that clearly shows the EHRC statement update re toilets and trans people

https://www.equalityhumanrights.com/media-centre/interim-update-practical-implications-uk-supreme-court-judgment

The eventual guidelines will have be so crystal clear that anyone can understand them and there's zero ambiguity.

It won't stop the fire brigade being called out to conflagrations in Jolyon's underpants drawer, but there's little can be done about that.

I don't know why EHRC decided to say anything about workplace facilities anyway, they're governed by H&S regs which weren't changed by the judgement. Why did they comment on them at all?