Advice on how to respond

[Lucyccfc68]

I am planning a residential at work for new apprentices and one of the HR team has produced a safeguarding policy for the event. Covers everything we need and I agree with pretty much all of it.

The exception being where it mentions gender and not sex in relation to accommodation and toilets. There are flats with 6 rooms - they all have their lockable own bedrooms, with en-suite. Again the policy on this refers to gender and asking someone who is trans what their preference is.

The person who identifies as trans is a biological male, who identifies as a woman.

I disagree with our policy, as I feel that it wouldn’t be inclusive or fair to the females who they will choose to share a flat or toilets with. To me, the law is clear - they use the men’s facilities.

I want to be able to go back with feedback that ensures dignity and respect for everyone, but doesn’t mean a man’s feelings and choices trump that of a group of women and girls. I also don’t want to end up with complaints from the females or their parents if they find out that a biological male is using the female toilets and sharing a flat with the girls (even though they will all have their own lockable rooms)

Can someone help me to relay this back in a professional and fact based way. I need to be careful with this, as I am the most junior of the people copied into the e-mail. The rest of Director type level.

Cheers

I'm confused - you say en suite, doesn't that mean each room has its own bathroom? But then you mention female toilets. Is it actually necessary to segregate by sex (i.e., at all) in this case, or wouldn't it be fine to have men and women sharing a flat? If there's no need to segregate, I think it's easy - you just say you don't think there's any need to segregate. If you think there is a need to segregate (NB, this is different from just saying that men/women are likely to prefer sharing with their own sex), then I think you point at the Supreme Court ruling and the draft EHRC guidance for support for the proposition that if any segregation is to be done, it must be by sex - there is never any justification for segregating by "gender".

Is it a shared flat where everyone had their own bedroom/bathroom but shared living space?

Great letter, CantHold. I'd perhaps also mention the risk of discrimination claims, as well as complaints.

Are you planning on having single sex flats so groups of 6 all of the same sex?

I would argue the wider point that gender should not be used to replace sex when carrying out a risk based assessment where a weight factor is actually sex.

Eg employees who are women will always have a risk factor of Pregnancy so any harm which can happen to a woman can happen to the child she is carrying.

An employee who is a TM woman would need a bin in her room for period products and the person cleaning the area should have ppe and training in proper disposal of the contents.

Anyway

What ages will the flatmates be?

Work toilets and changing areas will be covered by the work regs
https://www.legislation.gov.uk/uksi/1992/3004/contents

Imo the bedroom not specifically covered but would qualify as a changing area.

As each employee has a lockable room and changing/wash area the issue is about the public areas of the flats.

On locking
Are the rooms autolocking or will the person have to remember to lock the door each time they want security?

This is important to prevent someone entering the wrong room by accident.

So the EA law on Sex says mixed sex provision unless reasonable to exclude one sex.

The SC ruling says that all females are women and all males are men.
So if the company are going to allow mixed sex by allowing some females to be allocated a room with 5 other staff who are male they are choosing to provide mixed sex provision.

If this is the case the safeguarding policy must be prepared on the basis of mixed sex provision.

One PC is being asked about or given a choice of flatmates.

What happens if one person a man has a faith which will no allow mixed sex him to stay with female flatmates?

And this is off work time where the rules still apply but problems happen
a) unwanted sexual conduct
b) being forced to witness (see / hear ) the unwanted sexual conduct of others (solo or not)

The risk is still there with in SSS but the likelyhood of an event reduces.

So drunk and hitting on a flatmate or casual asking about FWB/dating/live-in lover or playing WAP on blast or kickers going missing if there is a washing machine provided etc
The company is on the hook for a lot of after hours conduct.

40A. Employer duty to prevent sexual harassment of employees
(1)An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment.

(2)“Sexual harassment” in
subsection (1) means harassment of the kind described in
section 26(2) (unwanted conduct of a sexual nature).
(3)A contravention of
subsection (1)
(or a contravention of section 111 or 112 that relates to a contravention of subsection (1))
is enforceable as an unlawful act under Part 1 of the Equality Act 2006 (and, by virtue of section 120(8) and (9), is enforceable only by the Commission under that Part or by an employment tribunal in accordance with section 124A (compensation uplift in employee sexual harassment cases)).

Harassment
(1)A person (A) harasses another (B) if—

(a)A engages in unwanted conduct related to a relevant protected characteristic, and
(b)the conduct has the purpose or effect of—
(i)violating B's dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—
(a)A engages in unwanted conduct of a sexual nature, and
(b)the conduct has the purpose or effect referred to in subsection (1)(b).

(3)A also harasses B if—
(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b)the conduct has the purpose or effect referred to in subsection (1)(b), and
(c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a)the perception of B;
(b)the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.
(5)The relevant protected characteristics are—

• age;
• disability;
• gender reassignment;
• race;
• religion or belief;
• sex;
• sexual orientation.

Can you refer to the SC ruling and say that facilities are sex based and not gender in like with the law?

If everyone has a private lockable bathroom and these are young adults, surely the flats could be mixed sex, like student halls?

you could give attendees the option to express a preference for single sex female, single sex male or mixed flats. Then the trans person can be in a mixed flat and is not singled out.

The trans person will opt for single-sex female accommodation, and kick off when allocated to mixed sex because of the lack of affirmation.

Alternatively, the only people opting for mixed sex accommodation will be men, and when the trans-identifying woman is allocated with them will claim they are being genocided.

However if the bedrooms are all for individuals, each with their own en-suite facilities then the accommodation appears to meet the requirements for privacy, dignity and safety, however they are allocated.