ICA in London: loos

[LittleBitofBread]

I was at this venue this weekend and they have, in one room, four standard cubicles plus an accessible cubicle, with sinks and hand dryers outside the cubicles. Obviously both men and women were using them. Am I right in thinking this isn’t lawful?

I think if it's labelled as unisex it's fine but female loos shouldn't allow males.

It’s labelled unisex, in that there’s just a sign that indicates that there are four cubicles. But I thought that maybe in this scenario, with a mixed-sex outer room, the washing facilities also had to be inside each cubicle.

Legal unisex loos have individual washing facilities integrated within the same room as the individual toilet, behind a fully-closeable and lockable door. But these are not. These are single-sex loos with basins outside cubicles with gaps at the doors. Removing the single-sex door sign does not make them legitimate unisex loos.

Relabelling a singe-sex loo creates an illegal loo provision as it discriminates against women (or men, for that matter) who cannot use mixed-sex toilets.

Good point. Personally I don't think unisex toilets should open into a communal area that's away from something like an open corridor. With the sink being in the cubicle.

Thank you. I can’t remember if there are gaps at the doors (or did you mean you’re familiar with the venue and you know there are?). But I presume they’re not lawful in either case.

You are correct. These loos are only suitable for single sex use - they are not self-contained cubicles and they don't open onto a public area.
There is law about provision of public toilets which is not being followed and in addition, they are discriminating against women in general, who are more disadvantaged by mixed sex toilet facilities, and women and men of certain faiths. The situation also infringes the dignity and privacy rights of both sexes.

You are correct.

Thanks all. I’d better send them a ‘disappointed of Pinner’ email then 😄

Can I ask: do unisex loos have to open onto a public area? What’s the reasoning?

It’s legal for public use: there’s no law mandating the provision of single sex toilets other than to employees.

There may be a case of discrimination to answer, but nobody has taken this to court yet. So it’s a long way from there to say they’re unlawful right now.

For employers to provide to employees: they’re legal if the cubicle doors are floor-to-ceiling (and are therefore individual rooms). There’s no law that says unisex washing facilities have to be in the same single-user room as a sanitary facility, up until the 2024 update to the building regulations which apply only to new and refurbished facilities.

For anything built or refurbished since 2024, they’re not legal, and wouldn’t have got LA approval to be built that way.

Can I ask: do unisex loos have to open onto a public area? What’s the reasoning?

I would ask anyone claiming that they do to say which regulation requires this.

Ok, now I’m confused. Are they in breach of the law or not?

I was responding to a pp who says, ‘These loos are only suitable for single sex use - they are not self-contained cubicles and they don't open onto a public area.’

Ok, now I’m confused. Are they in breach of the law or not?

No. Ask anyone who tells you they are to specify which law they breach.

I was responding to a pp who says, ‘These loos are only suitable for single sex use - they are not self-contained cubicles and they don't open onto a public area

I know. Ask that poster what law requires that.

Ok, thanks.

Hello - regarding opening out into a public area rather than a lobby with the sinks in it, I was thinking about Document T but it only applies to new buildings.
Apologies.

Ok, thanks. So are they lawful, as someone else has said, or no? (I’ve tried in the past to read the relevant documentation about this but have found it beyond me).

You’re right that there is only legislation around toilet facilities provided for certain demographics (employees, schoolchildren, andNHS patients, IIRC).

Providing only mixed-sex communal facilities that do not offer security and privacy to the user could be discriminatory to those unable to use mixed-sex facilities, regardless of who that user is. This has not AFAIK been tested in court.

The fact that woman=human female was so obvious that legally defining it did not occur to people - until women had fight the men who took advantage of the lack of definition to legitimise abusive behaviour. Similarly, the idea that mixed-sex toilets discriminate against women is obvious. But, as with what a woman is, it will take court cases to establish something that everybody knows.

https://assets.publishing.service.gov.uk/media/63d8076fd3bf7f252a730a11/EarlShiltonTownCouncil-v-MsKMiller2023EAT5.pdf
Regarding what Jellysaurus said above - this is an Employment Appeal Tribunal case which agreed that a female volunteer was being discriminated against because she had to share toilet facilities with men.

Toilets are also at issue in the ongoing Employment Tribunal case of Kelly Vs Leonardo - among other things, a formerly women only toilet was rebadged as unisex.

ETA: The expert on toilets generally and Document T is keeptoiletssafe.
And MariedeGournay has studied Doc T.

Those cases don’t help us because this is not an employment situation. Document T doesn’t apply to anything built before 2024.

There’s no obligation on service providers to provide single-sex toilet facilities. They can if they want but it’s not mandatory.

You may be able to look into local licencing bylaws. It’s hard to imagine that the ICA could get away with no toilets at all, and the regulations (whatever they are) that mean they’ll only get whatever sort of licence they need might say what kind of toilets are needed from a licencing perspective.

I'm no longer talking about Doc T.

The volunteer's case in Earl Shilton vs Miller was argued under the EA. The principle was established (or confirmed?) in the EAT that making men and women share toilets was harassment of this woman on sexual grounds and infringed the rights of both men and women to privacy and dignity. It would be irrational to say none of that matters because the women are not employees. I also seem to recall a section in the EHRC guidance about single sex rather than unisex facilities being the norm and failure to provide ss facilities for women (unless space precluded this) could lead to liability for sex discrimination. Does that ring a bell for you? I now can't find the guidance, of course.
The EA doesn't mandate separate toilets but it does outlaw discrimination. So if women (or men) are disproportionately disadvantaged by the way a duty-bearer chooses to provide facilities/opportunities etc and no exception applies, then the duty-bearer is unlawfully discriminating on the basis of a PC.

I ageee there’s an arguable claim under the EA for discrimination (I’m not sue harassment will fly, nobody is forcing the OP to use this toilet, but what do I know?).

Until there’s a body of case law to that effect though it’s just a claim. Let’s say the OP says “this is unlawful harassment” and the ICA tells her “no it’s not, please kindly fuck off”. What is she going to do next?

I agree this is very confusing. I disagree with a previous poster on what constitutes a ‘room’ in 1992 legislation. I have references to what building standards they would have been referencing at the time. A room was not a full height cubicle, it was the solid room within which the cubicles were situated. Building Standards were that a mixed sex toilet should contain all the facilities and be in a room. At the time, this mostly meant a disabled toilet or instances like small cafes where there was only one toilet or a ‘super loo’ in the street.

When this legislation was written in 1992 no one would have foreseen that men would be using women’s toilets and vice versa unchallenged. No one would realise we would have cameras in our hands most of the time and cameras could be so cheap and be hidden and be made to look like screws etc.

I also believe that it can be argued 1992 and 1974 Health and Safety legislation does include customers to venues as there is a line about health and safety of visitors to the workplace in legislation.

https://www.legislation.gov.uk/uksi/1992/3004

Part 20 is the section about toilets.

Interestingly the ‘secured from inside’ bit is arguably (rightly) contradicted by building standards. It’s been the case for years you should be able to get inside a public toilet room or cubicle from the outside because people collapse in toilets or misuse them.

Whats happened is we have a huge mishmash of designs which are the worst of all worlds. You can end up with a mixed sex cubicle that is private (no floor to door gaps) and replacing a single sex design so out of the way. The occupant can’t see or hear what is going on but a man can let himself into or lead or push a woman back into. It also means anyone collapsing can’t be seen on the floor (from outside the cubicle) to be rescued in time and the body can be there for days. This used to happen more in disabled toilets but this tragically has spread to offices, restaurants, clubs and even schools.

It is absolutely right that Document T says single sex toilets should be prioritised. In document T it is clear that single sex toilets are the only ones that can have door gaps but it doesn’t specifically state they should. That’s what I have discussed (via email) with HSE to hopefully get the details added back again.
Obviously in order to have door gaps above and below the door the area in front of the toilets, usually containing the sinks, should be single sex too.

There is a section in health and safety legislation about the toilets being adequately ventilated and lit. This has become more of a problem recently with enclosed toilets, particularly when the door rests in the closed position. Scientific evidence shows the pathogen load is much greater due to reduced ventilation and reduced ability to clean.

I agree it is discrimination to only have mixed sex facilities.

I strongly believe single sex toilets with door gaps should be provided as the default so anyone having a medical emergency stands a better chance of being rescued in time. This would save the lives of men, women and children each year. I would categorise it as an essential (very) reasonable adjustment for the millions of people in this country with epilepsy, diabetes, brain and heart conditions. Some of these conditions are classed as disabilities. From my research I know this design prevents women and children from being assaulted inside toilet cubicles and rooms, by men. It would also reduce the opportunity for hidden cameras to be positioned, particularly in women’s toilets. Perpetrators don’t like witnesses. Voyeurs are always men.

https://www.irwinmitchell.com/news-and-insights/expert-comment/post/102kb9l/do-retailers-have-to-provide-single-sex-toilets-and-changing-rooms-for-their-cust

Good question. I probably won't/wouldn't try to say it was harassment, for the reason you give. I may well write and point out that it discriminates against women who cannot use such an intimate mixed-sex facility for religious/cultural reasons though, and point out that we have a problem in the UK with attendance at galleries and museums by people belonging to minorities, which this cannot help. As well as it infringing the rights of both men and women to privacy and dignity.
I can already envisage what kind of reply I'm going to get, though.

You make excellent points in your proposed email.

IANAL, but just fyi, sexual harassment is what we would all recognise as such but harassment related to sex under the EA can simply be the presence of a person of the opposite sex. If you experience unwanted behaviour related to being a woman - and the presence of a man in the women's changing room or toilets, regardless of whether he did anything or said anything, counts as that - it could be unlawful discrimination by the service provider who put you in that position.
Though I think you're wise not to go there as a lay person.