HR tell trans identified person to use work toilets that match biological sex. Person refuses. Colleagues complain about their presence in incorrect toilets to HR. What's the legal position of all parties?

[SingleSexSpacesInSchools]

Whats the legal position for the workplace (repped by HR) as well as the trans identifying person? Will it depend on written policies in the workplace? Or by toilets saying Male/Female on them (or with the recognised signs for sexed spaces).

Different from the NHS cases, as this time HR is saying "don't do that". Could the trans identifying person get constructive dismissal?

Does it just become a disciplinary thing for not doing what you are told?

This isn't actually a hypothetical, I read this reddit thread https://www.reddit.com/r/transgenderUK/comments/1ovzfde/hradvice/ along with the advice given to the OP.

(Do read all the comments if you have the chance ESPECIALLY the downvoted ones at the end by a user called "Protect-the-dollz" . I personally think it's awful there is so much disinformation and poor advice everywhere and people are risking their lives and mental health off of it)

Very interesting. There is some terrible 'legal' advice on there!

Jeez. Imagine going into a work meeting that could lead to your termination armed with information from Reddit. 🙈🙈

They all hate that Protect the Dollz character who seems to have some legal knowledge. They think he is a “TERF” plant trying to make the situation look worse than it is for them. He’s no friend to GC women, just understands the SC judgment better than most of them.

I'd think it is reasonable (edited to add: and probably necessary to successfully navigate an ET), to provide an alternative to the person's sex based toilets if at all possible - likely in a small workforce with limited facilities to be the accessible loo if there is one - but if they are not able to respect other people's legal rights and needs for access, and see other people's requirements and feelings as being 'bitter and old', then yes, it's going to come down to the person making a decision about whether or not they want to be employed there. And if I was their manager, and this was their attitude towards colleagues, I'd be happy at this point to wish them all the best in their next job.

This is going to need to go into all job descriptions and contracts.

Right? Whoever they are is clearly on the side of trans people but refuses to do wishful thinking, then gets downvoted.

@Protect-the-dollz - if you read this do drop in for intelligent debate.

I think this situation is what Bridget Phillipson is concerned about. Could an employer be discriminating against a trans employee by failing to provide a non sex-specific toilet? The single sex toilet provision rules are clear but if an employee claims that being made to use the toilet of their sex not their gender identity causes them distress then it could open up the employer to harassment claims. I'm glad I'm not in that HR meeting.

I'd like to see them evidence that distress. What about the distress of those wanting single sex spaces and being forced to accommodate someone who's thoughts about themselves don't align with reality?

Trans person is refusing to comply with a reasonable management instruction. Continuing to refuse could be construed an act of gross misconduct and could result in dismissal.

Law on the fact that it is a reasonable management instruction is clear in the Supreme Court Judgement.

Other employees can raise a grievance if the employer does not act.

It sounds to me like HR are probably doing the right thing following the SC ruling.

If the trans employee doesn't follow instructions then other employees have the right to take action against the company for not providing a single-sex space in practice. ("We tried our best" is, I think, not going to cut it as a defence here.)

The trans employee is not, in principle, breaking any laws themselves by using the wrong toilet. (Maybe a slight possibility of a case for harassment or something but difficult to prove.) However they are disobeying HR's instructions and liable to be (legally) disciplined and eventually sacked.

I don't know of any legal requirement to provide a single-sex one-person facility. Most places don't have them! The accessible toilet might be a reasonable compromise but I don't think the company can be compelled to make that choice and if they did they would have to consider the risk of discriminating against any disabled people who might use it.

If using the male toilets causes distress as part of their condition, then they can ask for a reasonable adjustment.

Using the ladies is not a reasonable adjustment.

Depending on the situation/employer, having a single use mixed sex toilet might be reasonable though.

If the employee continues to use the ladies, then the employer is failing in their duty to provide single sex toilets for the women, who can then take action. The employer can also take action against the employee doing it - following the standard process, ultimately possibly ending in termination of employment

Agrees. Worth remembering that Phillipson's department though is part of the government buildings, departments and civil service that brought in required access under the disability discrimination act twenty years back, they have access to the blueprints. There was the same moaning and worries about expense when it became necessary to ensure that where possible all buildings were able to provide equality of access including toilets and ramps, with obvious exceptions to things like listed buildings and very small businesses. The LAs had grants to help, they sent out employees to listen to the moans and support/enforce that this did have to happen, and it got done.

It wasn't publicised and nobody cared because disabled people, like women, don't seem to matter like this group does. And wheelchair users have accepted the reasonability of limits such as that they can't go and work in a listed building that cannot install a lift/put in an accessible loo because it's not a reasonable or possible thing for that one specific workplace.

It's going to have to work the same way.

But the main issue the activists are focused on is not having an accessible loo, it's about ending the right of women to protected single sex spaces.

This is why no one in their right mind would knowingly hire someone who was any flavour of trans. They would not put that as the reason, but I'm sure they could cook something up. Being asked your pronouns at interview might be to screen out the genderists!

Excellent points above.

Regarding potential claims of discrimination, let's all remember that this person probably transitioned at work, and/or is easily identifiable as the sex they are. They were almost certainly using toilets for their sex most of their adult life until fairly recently.
Outing is unlikely to come into it, and even if it does, tough - there is no right not to be treated as the sex you are outside of the narrow application of the GRA.
Both men's and women's toilets have at least one cubicle.
There's no reason other than preference why this person can't use the correct facilities.
They are not being treated differently to other employees of the same sex.

The GLP barrister yesterday claimed there was a detriment unique to trans people if they could not use a toilet that aligned with their lived gender. Apart from wtf is their lived gender anyway, this cannot be an absolute right which overrides those of the opposite sex users who the provision is for.

And further, toilets are for performing bodily functions. Not for affirmation.

Not that TRAs want unisex toilets anyway, but it would be outrageous to make a small company (as this seems to be) go to the expense of creating a special loo for this one person - and even if it is technically open to all, it will in practice be an additional toilet for men.

I would say that most buildings large enough to have separate male and female toilets, also already have an accessible toilet as a third option. Certainly most places that I visit are either small businesses with a single toilet, or have the three options above. So while I realise that there will be some organisations that will need to consider their toilet provision carefully, notably those who have built non-compliant cubicles, for most this is a non-issue.

It’s not a repeat of the disability legislation requiring changes to most premises and it’s not the gotcha the GLP think. As regards the scenario in the OP HR need to stay strong and dismiss the knob.

If using the male toilets causes distress as part of their condition, then they can ask for a reasonable adjustment.

Reasonable adjustments only apply to disabilities.

So unless the trans person can argue that they are disabled for employment law purposes this would not apply.

If the employer has space to offer an individual cubicle this would have to be considered as an alternative to dismissal for the dismissal to be 'reasonable in all of the circumstances'.

Here's the guidance needed in full.

'Use the facilities related to your biological sex. If another member of your biological sex takes any action against you whilst in there, report it to us and we will investigate. For any other instances of bullying in the workplace, use the workplace bullying policy linked below'

<insert link to bullying policy>

This feels like a classic case of the law not keeping up with society
In a work situation nobody wants a man in the women’s toilets. Male colleagues knowing the details of what is going on in there with female colleagues, is so beyond inappropriate. I really don’t care what those men like to wear to work. That’s up to them and irrelevant to female colleagues’ work dignity. Male colleagues can budge up in their own toilets. This is entirely on them to resolve.

This has happened to me and we felt scared to raise it and the (also male) management and HR knew it was happening and they didn’t deal with it. Women I worked with went to the toilet elsewhere wherever they could to avoid sharing the space, but doing that ate into our work time and lots of other women and visitors would not have had that option and will have had an unwelcome experience.

Maybe this entitled male behaviour at work could be enforced to come under contractual obligations somehow in the meantime until law is updated.

I haven't read the original post, but what basis do they have to require accomodations for their distress? Genuine question.

Because a lot of effort went into decoupling trans and mental health. Many trans people don't have gender dysphoria and claim trans is an inherent quality akin to sexuality. There are no toilet accomodations for different sexualities, so why for trans?

If they have a diagnosis of gender dysphoria then surely they would be requesting an accomodation on mental health grounds, i.e disability, not trans? In which case it is not a trans issue and the protected characteristic of gender reassignment is not applicable. And accessible toilets are available for mental health issues that reach the level of disability

Astounding lack of empathy and ability to recognise that women also have rights, as usual. The only reason his colleagues are complaining is because they are bitter and old, there is no legitimate reason for women to be upset about having a male colleague using their toilets.

I hope that employment tribunals continue to confirm that employers do have a duty towards their female employees here.

Well they’ve said they aren’t going to resign so they can’t claim constructive dismissal.

As long as there are facilities for the TP to use it’s a reasonable management instruction to tell them to use that

they may try and claim GR discrimination but the defence to a claim of direct discrimination is that they are not being kept out the ladies because they are trans but because they are male

and to a claim of indirect GR discrimination that removing them from the ladies is a PMOAALA in complying with FWS re the SSS.

as long as there is another facility the TP can use I don’t think they have much of a leg to stand on

in any event employer may make a commercial decision that they can piss off the TP and face one legal case or piss off women and face lots

The GLP barrister yesterday claimed there was a detriment unique to trans people if they could not use a toilet that aligned with their lived gender. Apart from wtf is their lived gender anyway, this cannot be an absolute right which overrides those of the opposite sex users who the provision is for.

This being in neat precis the answer to the High Court case, Phillipson, the WEC and all the rest of it.

It’s not a repeat of the disability legislation requiring changes to most premises

It's not. But if Phillipson et al want to make this their 'balancing of rights' then they are in the place that created these additional facilities before, and it happened without much problem. It wasn't 'too expensive' or 'too complicated' to do at all, which are the excuses we're having thrown around as reasons to deny women their legal rights.

This.

It's similar to other laws that rely on the social contract for people to follow them. Take red traffic lights for example: someone who jumps them knows they are breaking the law and they might feel they have a very good reason for having done so (wife in labour, emergency school pick-up or whatever).... but the law is without emotion here. If it wasn't, there would be all sorts of creative reasons offered up whenever anyone broke it.

Just as we don't have police or cameras on every traffic light, we don't have people policing who uses which toilet. The organisation is not legally obligated to provide an alternative if someone doesn't want to use the facilities for their sex, any more than a council is legally obligated to provide an express lane for anyone who believes they have a good reason to avoid red lights. In both scenarios, each respective organisation might provide an alternative. But they don't have to. Whereas people do have individual responsibility for following the law.

Does this just highlight that's it's the being with women that men need to affirm their delusion. Someone correct me if I'm wrong but I'd assume a work place toilet would be safer than a public toilet and a man with a gender identity would realistically be safe. If they really just want to pee then what is the issue. Also, you can guarantee that if all the women started to use the men's toilets then a man who was pretending he was a woman would follow them over.

It is an interesting one. One side is clear to me, hopefully we’ll get positive confirmation from the recent tribunals. A workplace refusing to provide or failing to enforce single sex toilets is breaching workplace regulations, and subject to being sued for sex discrimination. A male employee entering a female space without permission and after explicitly being told not to is gross misconduct and would be cause for dismissal.

The other side is less clear. To what extent do trans identified men suffer detriment compared to other men by being asked to use mens facilities. I think it probably is arguable that they do suffer some detriment and that there is a reasonable issue with privacy or dignity and/or that it is harmful to their mental health. So I think a sensible employer would ensure they provide a separate gender neutral single cubical option where this is likely to be seen as “reasonable” by an employment tribunal.

A gender neutral space for people with gender identies different from their biological sex would be open to biological men. Would a man who didn't want to use the men's toilets because there are men in them then refuse the gender neutral space?