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)

Usually a gender neutral toilet means a single fully enclosed toilet (like a disabled loo) which you usually get in cafes etc.

I'm wondering if such a space was provided and only men who identify as not men used it would that satisfy such men.

It's disappointing isn't it and really reinforces the belief that they have nothing to argue with other than personal stories of woe and, when those fail, descend into personal attacks. He is clearly intelligent and understands the arguments being made but has some kind of mental block on understanding why this situation has arisen.

It wouldn't delight them because it would be a recognition of the fact that there are differences between them and women. Anything that breaks the immersion tends to go down badly.

But it would be more than enough from an employer and they'd certainly have no grounds for valid complaint.

Excellent post from @BonfireLady. I couldn't agree more.

I particularly like her/your(?) reference to the social contract and how it works in similar cases, like red traffic lights, etc. This seems to be something that we're losing these days...

I also like the statement "but the law is without emotion here", which, of course, reminds me of that great quote from Aristotle in Legally Blonde: "The law is reason free from passion".. Which is not a sentence I ever thought I'd write. Go, Reese Witherspoons!

Somebody could suddenly "discover" they were trans a minute before they started in the role.

Or they may just be trans in office hours.

In the UK an employer is allowed under the Equality Act to have single-sex toilets and to require staff to use the ones that match their biological sex. A trans-identified person does not automatically have a legal right to use the opposite-sex toilets, even if they identify differently. It is lawful for HR to tell them to use the correct facilities.
If the employee refuses after being given a reasonable management instruction, it can become a disciplinary issue. A claim of constructive dismissal is very unlikely because the employer is enforcing a lawful rule that applies to everyone.
Colleagues are also entitled to raise concerns if someone is using the wrong toilets. HR has to take those complaints seriously as well.

It goes further than that @MickelC , under 1992 workplace regulations, employers are required to provide single sex toilets (and showering/changing facilities if the job requires it).

a fact the CIPD has still not commented on their “trans workplace inclusion guidance” the useless fuckers

Surely the business should be ensuring that there are also plenty of sole-occupancy fully-enclosed toilets, and then should have the same rules for everyone that you can either use the cluster cubicle/urinal rooms for your own physical biological sex, or you can use the single occupancy rooms, and it's fine to do either, for everyone of every possible gender. Having different rules of less access for any category of people is discriminatory, and it is established in law that failing to provide a singie sex facility is discriminatory to the women who need that (it's irrelevant how many women there are who don't need it, some do) and it is established in law that a facility that can be used by women and also males with a feminine gender identity is not single-sex. However there is no barrier to having plenty of single-occupier enclosed rooms that can be used by anyone irrespective of gender.

There are the barriers of space, cost and what changes are permitted to the building.

It is amazing how much legislation there is around toilets and workplaces.

One of the reasons I worked from home for eight years was the main office could not support the requirements in terms of diameter of waste pipes needed and it was cheaper to have 50 home workers than move (800+ people).

Exactly.

Not to mention that unisex fully enclosed toilets indirectly discriminate against women, are less safe for everybody (especially women & girls, vulnerable or sick people) and are much less hygienic than blocks of toilets with door gaps. Unisex toilets are spectacularly unpopular with both men and women. They are an option if there is space, not a first resort.

We don't need to reinvent the wheel. Communal single sex blocks are safer, more hygienic and allow quicker throughput.

Edited to correct typo

Health and safety regulations in the uk have an overarching requirement on the employer towards employees.

But, Employees also have general duties under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999. They must take reasonable care of themselves and others who may be affected by their actions and comply with their employer’s arrangements for managing health and safety.

Therefore, single sex provision is required. But an employee refusing to use, particularly in the light of the SC ruling, surely makes the employee in breach of this?

It would be interesting to see how they claim a ‘reasonable adjustment’ to not use the toilets provided for their sex without admitting it’s a mental health condition.

Related poor advice … https://www.reddit.com/r/transgenderUK/comments/1oxnr9j/im_going_to_start_using_the_toilets_again/

I mean, how does gender identity affect how you use a loo? Or whether you use a loo or a urinal, how often you go, etc? GI is not relevant to sex-segregated facilities or spaces of any kind. There's no evidence that GI is a real thing. And even if it is, there's no reason why it needs to be accommodated or acknowledged by society. Let's please not forget this.

Toilets are just toilets, they're not affirmation tools or somewhere to celebrate your womanhood. Public toilets need to be adequate in number, safe and hygienic. That's it.

Exactly. It’s a lifestyle choice as many if not most don’t actually suffer from gender dysphoria. Why should an employer be spending money to accommodate a lifestyle choice?

Well employers used to provide smoking shelters ....

https://www.bbc.com/news/articles/cddrjq9764yo.amp

This is on the BBC.

The purpose of smoking shelters was to provide protection from the elements for people who wanted to smoke. Their purpose was not to force non-smokers to share indoor space with active smokers, or to enable people who didn't actually smoke to pose for selfies with unlit cigarettes or pretend they were at greater risk of lung cancer, etc. They were shelters where people could go and smoke. That was their function.

Rights were balanced. The activity of smoking impinges on non-smokers in enclosed spaces, therefore smokers were required to go outside if they wanted to smoke. Smoking was not forbidden. Shelters were constructed because there was a sufficient number of smokers among the staff to make it worthwhile. Starkly different from what we are being asked to countenance with toilet provision.

It's ridiculous.

I have to use the opposite sex toilets otherwise you are denying my trans identity which everyone needs to acknowledge.

And also:

If I use the same sex toilets, everyone will know I am trans and that would be a disaster.

The point you missed was employers supporting a lifestyle choice.

I haven't heard of smoking shelters for years now. Along with employees getting to smoke during company time.

SerendipityJane

Yes, true.

I understand what your point is, and it is a fair one, but in relation to toilets, the "lifestyle choice" makes no difference to the practical function of the toilet. It would be like providing special smoking shelters for Aquarians, or Taylor Swift fans.

The employer failing to protect the sex that complained could be open to harassment to that group if they force them to share.

Court cases in progress are interesting for this reason.

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?

The HR dept were correct and following SC judgement.
The trans identifying person seems guilty of insubordination, and possibly misconduct.
The colleagues could raise a grievance, a possible discrimination/harassment case.

Would be my view, although IANAL. It would require a formal investigation, possible suspension given the issues involved, while that was conducted.