Employer lying about trans policy on FOI

[Toodles89]

I work in the public sector. Since the sc judgement my employer has had 4 FOIs asking about our single sex spaces and whether we have or had a trans policy. The answer is always a version of 'we're waiting for the ehrc guidance and do not have a policy on use of SSS'.

They used to have a visible trans policy (use space that aligns with your GI), it was then hidden but used to advise managers of transitioners. It has never been revoked.

The twist is that the guidance was badly hidden and can still be found with a keyword search. I see no reason why a trans colleague might not search for and act on the info, or a colleague who objects to people using the wrong spaces might search and feel they can't complain. And obviously this means we do have a written policy.

So are they allowed to lie like this? If not what can be done?

I'm sure guidance will be updated eventually, and the backlash will be enormous despite every building having several unisex options.

I guess it depends on the exact wording of the FOI. But if it asks for any previously published guidance and your organisation states they never had any, and that is untrue, they could be in hot water.

However it might need someone to whistleblow.

https://ico.org.uk/for-organisations/foi/foi-complaints-and-ico-enforcement-powers/

You would need to evidence it though. I don't know if the Way back Machine would be able to archive the page

Was it officially withdrawn when the SC ruling came down? They may not have removed all copies even though they should.

It's never been officially withdrawn just quietly removed from the HR guidance menus. I know trans people who were told they could use the women's 10+ years ago and they say they have never been told otherwise so it wasn't revoked just hidden.

I do wonder what advice they'd give if asked today but I don't have staff so no reason to ask.

At least one of the foi asked for the most recent guidance or older guidance if now removed with dates.

A woman in my building has complained twice since the sc ruling about a man in the ladies and been told ' we have no policy about who may use the woman's loos, if it worries you use the unisex'. Surely that IS a policy even if its not written down.

Thank you for links, I'll check if I can meet the criteria.

Whistle blowing might also be an option.

Really I don't want to cause trouble but hate the lies and fake ignorance. There are 2 tw in my building but not on my floor so it doesn't directly affect me.

That’s outrageous! IANAL but it seems very likely that their not written down policy still counts as a policy if it’s consistent, intended to direct staff behaviour and functions as a policy.

I'm wondering if we have the same employer Toodles89? I have been made to feel uncomfortable by a transwomen with a significant interest in menstruation at work and I asked just before Xmas if the policy was single sex or single gender and was told there is no policy - people can use what they like (surely a policy in itself).

Since the SC judgement, I have found 3 FOI requests submitted to my employer and the responses simultaneously confirm there is no policy or equality impact assessment and that they are definitely meeting the 1992 workplace regulations.

If there is no policy, how can they possibly know whether they are meeting the regulations?

I was told to use the unisex toilets and when I explained queueing for the unisex option had caused problems with menopausal flooding was told to use the disabled facilities instead :-(

Wow, that is next level.

I suspect most public sector is the same. I don't know how this has happened.

Michael Foran tweeted today (sorry I don’t know how to link precisely):

Important to stress that not having a written policy does not mean that there is no policy in practice or a practice of behaviour for the purposes of the Equality Act.

My employer (school) has a similar non-policy policy. I suspect they think this renders them beyond criticism, but they are clearly on very sticky ground.

In my public sector organisation, we have a dedicated person with FOI responsibilities. I would message them and say that you are worried false information has been given out to an FOI request as you have just stumbled across this existing policy.

Don't mention the rights or wrongs, focus on potential inaccurate information and formal consequences

Is your workplace big enough that you can put up stickers on the toilet walls reminding people what the Equality Act of 2010 means without being a suspect?

I’d make a formal complaint - the menopausal flooding issue is a biological need and an absolute illustration of why single sex facilities are justifiable, proportionate and needed.

If you complain to an employer that a man is using the women's toilet and their response is that you should go somewhere else if it bothers you, their policy is that men can use the women's toilet.

Policy is not what you write down; it's what you actually do or permit. A written policy is only your policy if it accurately matches your actions.

Slightly off topic, but do we know when the EHRC guidance is due out? I can imagine a lot of organisations playing this game currently. It's not fair on anyone.

Well she needs to sue them , its not her who should be using the unisex if her issue is sharing with men.