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)

ACAS are reviewing their advice post SC judgement:

'Important: We are reviewing our advice following the court decision on 16 April 2025. The Supreme Court ruled that 'sex' in the Equality Act 2010 refers to biological sex.'

https://www.acas.org.uk/acas-response-on-uk-supreme-court-decision-on-sex

And re harassment, the trans identifying employee could really be putting their employer in a risky position:

'Employers must take steps to prevent sexual harassment happening in the first place.
Employers can be held responsible for the actions of employees. This is called vicarious liability.
Employers also have a responsibility – a 'duty of care' – to look after the wellbeing of their employees.'

'To be sexual harassment, the unwanted behaviour must have either:

• violated someone's dignity
• created an intimidating, hostile, degrading, humiliating or offensive environment for someone

It can be sexual harassment if the behaviour:

• has one of these effects even if it was not intended
• intended to have one of these effects even if it did not have that effect'

I'm no lawyer, but I am sure English law doesn't recognise a situation where you can break a law to comply with a law.

The top of the tree will always be an act of parliament, because parliament is supreme. After that it will be a ruling from SOCTUK. Then a ruling in the CoA. Then a ruling in the High Court.

Quite.

I do think there is a potential issue for employers and Service providers who do not have the ability to offer both SS and GN toilets/facilities.

If an employer has SS and GN toilets (ideally not disabled) then TP have no claim of discrimination. Giving a TP the option of either using SS toilets based on biological sex or the GN toilets is a reasonable solution.

Using disabled toilets as a GN toilet for TP/NB is a pragmatic temporary solution. The aim being to provide a GN toilet longer term so the disabled toilets revert to their original purpose.

This will get tested via ETs and if an employer has both SS and GN toilets and follows a best practice disciplinary process for employees who continually breach policy (and the law). TP who continue to use SS toilets relating to their chosen gender I.e. not their biological sex, when a GN option is available are being unreasonable.

Using disabled toilets as a GN toilet for TP/NB is a pragmatic temporary solution. The aim being to provide a GN toilet longer term so the disabled toilets revert to their original purpose.

I suspect there will be fewer disabled employees than trans employees.

I've worked in 3 locations where there was only one disabled toilet on the "outside" by reception for visitors that any disabled staff would have to use.

Luckily there were never any staff that needed to use them, so I don't know any more.

Whatever I think the term gender neutral needs to go and be replaced by ‘mixed sex’. The less that ‘gender’ is used when sex is meant, the better.

https://www.acas.org.uk/gender-reassignment-discrimination/preventing-discrimination

'Toilets and changing facilities

At some point during their transition, an employee will probably want to change the facilities they use.
If an employee tells you they want to use different facilities, you should talk to them about:

• when the change could happen
• what, if anything, to tell other employees

Everyone at work should be able to use facilities they feel comfortable with. Making a transgender employee use facilities they're not comfortable with could be discrimination. If other employees raise concerns related to facilities, you should be sensitive to these. Consider the concerns and look for practical solutions that everyone can accept. Good solutions might include:

• having one or more self-contained toilets that anyone can use
• making sure changing rooms have lockable cubicles'

Those saying a 'gender neutral' toilet is the answer - the whole point is that trans identifying men want to use the WOMEN'S toilets. That's where the thrill lies.

I think this is an accepted fact for many TW. However, NB and Trans rights supporters are now seeing GN toilets as the answer.

However, the point of this thread is the legal basis on which an employer can take disciplinary action if a TP persistently uses SS toilets for their gender not biological sex. Having GN toilets alongside SS undermines any claims of fear using SS toilets for biological sex.

@CanaryChaffinch I personally prefer unisex toilets so Male, Female, Unisex and disabled.

@SerendipityJane I disagree there are far more disabled people 24% of population or 16 + million compared to TP 1% or c200,000 to 500,000. Most disabilities are not visible.

Why do you prefer unisex, out of interest?

No organisational policies or HR personnel will ever trump the law. The law has made this issue very clear. Sex equates to biology and women (and men) should have separate toilets based on there sex.

Obviously yes. But if employers provide a gender neutral option that is presented as "for anyone" (not as "for trans people" so it isn't "othering") then the trans people have no legal basis for claiming discrimination/toxic work environment due to being forced into a dysphoric situation whenever they need a wee. Of course we know that for some of them the true point is the thrill of transgressing women's boundaries and forcing women to comply with their fantasy but they don't usually say that bit out loud and realistically it's simply not going to happen that society will flip on its axis and actually start insisting that transwomen use the men's in all circumstances. A universal understanding that sex and gender are different, and that single sex facilities belong only to people of that sex by birth, is achievable and is within reach but that result will not be secured without a clear requirement to also accommodate trans people in unisex facilities. Of course that will be inconvenient and expensive but it's necessary because the majority of ordinary people - who know full well that men can't be women but who don't feel it matters that much because they've never experienced situations where it really did matter (and who will currently e teetering on the brink of acknowledging that ok well maybe there is enough reason to say it natters sometimes) will not go along with a total reversal to a system that forces trans believers to deny they own deeply held beliefs. The fact that trans people don't want 3rd spaces is irrelevant. Ensuring that 3rd spaces are provided wherever possible - and that all facilities are single-occupancy if there isn't room for 3 spaces - is the only thing that will make it certain that their ongoing fight for access to wrong-sex spaces will be seen and understood for what it is.

I know there are crusaders against unisex facilities but they are the lesser evil. If we don't establish a requirement for all employers and organisations to accommodate trans believers in one way or another without allowing access to wrong-sex facilities, there is a serious danger that the alternative that they will succeed in regaining ground for the idea that accessing the wrong-sex option is the only way they can survive.

I sort of agree but to me mixed sex toilet implies men and women sharing a multi cubicle toilet area.

As a pp said. Unisex is probably the best descriptor.

Which they will kick up a stink about, and not use it.

With the Darlington nurses tribunal, the women were shunted off to a crappy old office, while Mr Most Important Man in the Hospital, obviously still used the ladies.
I’m surprised he wasn’t pig headed enough to decamp to the crappy old office.

Specifically unisex single occupancy though.

Used a few ciblcle-cluster unisex loos on holiday in The Netherlands. Every time, there's a bloke using a cubicle who didn't bother to lock the door and you push the door ooen and see more than you wanted to. Single occpancy opening into public hogh-traffic areas ought to discourage that.

I like clear language. Single Sex and Unisex toilets = consistent sex based language. It’s clear and says exactly what they are.

Unisex means both sexes, so anyone can use unisex toilets. Clothing is unisex, hairstyles are unisex, make-up is unisex etc.

Gender Neutral = a sop to appease people who believe in GI. I use it because I believe we need to move the narrative so the norm is SS and Unisex provision but recognise Unisex is too big a leap for many believers.

Ah, I got the wrong end of the stick. I thought you meant that you preferred to use unisex toilets.

We already have properly designed, fully enclosed unisex toilets. They are underutilised. The men who are happy to use the men's toilets are doing so already - pointing this out is a much better way of demonstrating that unisex toilets are not essential to people with cross sex identities than requiring businesses to spend money or sacrifice space to create new facilities which will also be underutilised.

There might be a court case, but my non-expert opinion is that there is no detriment to a man who wants to use the women's toilets because none of the other men are allowed to, either.

Edited for clarity

Hmmm if and when we get an update. Interesting. IANAL.

Even before the SC judgement employers could exclude transgender individuals from single sex facilities. This is where the "proportionate means to a legitimate end" part comes in from previous ECHR guidance, here the dignity of their female employees, "the germs".

I may be wrong but I'm not aware of an court case where the employer ticked all the right process boxes, excluded a trans from a single sex space or service and was successfully sued. So I don't agree there's a legal ambiguity, though IANAL and that assumes HR has ticked all boxes.

As an employee, ignoring a HR request by going in the toilets anyway is clearly an immature and inappropriate way to react. They had a problem they should have raised it. That would likely be looked down on at any employment tribunal.

We don't know what alternative facilities have been offered which is also relevant. It's entirely possible there already is a gender neutral toilet. It's also unclear if the individual has any gender dysphoria causing them actual distress using the men's.

I would be happy with “unisex” - I really just want any reference to “gender” removed from toilet signage.

This is not law. Its a set of guidelines that has been brought in. But as yet not law. Not sure how it would hold up in a court of law.

Why are all these organisations "reviewing" their guidance, publishing draft and interim guidance, and generally procrastinating and prevaricating? What are they all waiting for? Who are they expecting to declare first? Lazy cowards. This just enables everyone to carry on with the status quo at the expense of women, because they are waiting for the final guidance which never seems to come

April, they started "reviewing". It's now November. It's dickensian