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)

This is the law.

The guidance - not guidelines - is a summary of the legal position with practical examples. There are two sets, which are designed to assist service providers and employers respectively in complying.

This is not true. The Supreme Court decision clarified the law as it is. The law is the law irrespective of the EHRC guidelines.

Ding ding ding! That’s wrong. Thanks for playing.

As above. The guidance cannot be different to the actual law.

That was Stonewall's game for years, reinterpreting to what activists wanted the law to mean. That was what led to the SC judgment re establishing what it did mean.

It has gone through a court of law. There is no higher UK court than the SC.

If Parliament rejects the guidance, its only option will be to try and change the law, because that guidance cannot say anything that the SCJ didn't confirm. No matter how much people brigade and wail and say it's too expensive. And that would mean the government setting out to remove women and gay people's rights in law to give a small group of men access to non consenting women in a state of undress.

This time with the papers and women's groups loudly explaining it all to the public, the days of this happening in back rooms and sliding under the radar are gone.

Frankly too, if that happens and the government set out to attempt to do this and re write the EqA to basically be the men with trans identies primacy act, it will be time to go full after the GRA. Which was what caused this mess in the first place, and is no longer needed anyway.

Out of interest, where did you get this idea? The EHRC guidelines set out how to obey the Equality Act which was clarified by the Supreme Court decision.

What is not the law?

t has gone through a court of law. There is no higher UK court than the SC.

Actually there is.

Parliament.

British constitutional law makes Parliament supreme with no body higher.

If the SC take a view that is contrary to the will of parliament, then parliament can quite easily remedy that in statute.

(Parliament has actually sat as a court - what do people think a "writ of attainder" is ? I'm no lawyer. But I am a history vulture).

I’m pretty sure we all know Parliament can change the law.

I think 'quite easily' might be a bit of a stretch. But yes, I agree and said: if Parliament don't like the law they can attempt to re write and pass it.

What's not the law?

The Equality Act 2010? The Workplace (Health, Safety and Welfare) Regulations 1992?

Yes, these are the law. That there has been (alleged) activism to stop the release a delay the release of the guidelines that helps organisations understand how they can follow it is irrelevant. The only difference is that currently, they have to follow it without being given ideas about how they can do so. They'll have to figure that out for themselves, until that becomes available, and accept the inevitable law suits coming through if they get it wrong. Unlucky, but there we are.

I said "quite easily" to be a tad goady.

If the TRAs are so convinced of their case, then why not get parliament to address it ?

Because not only is it a deeply flawed case ... I suspect the next time parliament revisit this debate the laws will be very unambiguous. Especially when Nigel Farage is a Prime Minister.

Incorrect. You've got this upside down.

It is the law. It's been the law for years but the guidance was wrong.

And people are having a meltdown about it.

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.

More than that. This person is legally male. He has been using female only facilities and the women he works with have complained to management that his presence in the female only facility is causing them harassment, alarm and distress.

Management speak to him and tell him that he is not allowed to access the female only facilities. His presence is causing his female colleagues to feel harassment, alarm and distress.

This man says that, despite knowing the distress he is causing and despite knowing that he is not allowed to use the female only facilities and despite being expressly told by HR that he is not to use them, declares that he is going to continue to harass, alarm and distress his female colleagues by using the female only facility.

That's pretty damning and I don't think the defence of 'but I want to' is going to stand up in any courtroom.

Also, if they don’t take steps to enforce, they could face a harassment claim by the women involved and he could be added as a respondent just like Dr Upton.

This is a little confused.

The doctrine of the separation of powers tells us that there are three branches - the judiciary, the legislature and the executive.

The Supreme Court is the highest court in the land. Parliament is the legislature and is not part of the judicial system. As a legislative body, it can change the law, but the SC has the last word on what the law currently is at any given time. The Supreme Court cannot change the law, only interpret it. It interprets according to the will of Parliament, which is a technical legal term which does not just equate to the desires of current or past MPs and certainly not of the current government - the third branch of power, known as the executive. The government is also subject to the laws which Parliament passes. We say that Parliament is sovereign because it can pass or repeal any law it likes, not because the government can ignore any law if it chooses. Also on sovereignty, the saying "Parliament cannot bind itself" means that no law is non-repealable or amendable, even if the law itself says that.

Our judiciary is independent, whereas the legislature and executive are closely entwined for obvious reasons.

If the government wants to change the law, they have to submit a bill to Parliament and get it passed in both houses.

It's only confused if you believe there is some sort of fundamental power behind parliament in the UK.

"Separation of powers" is not a concept that features in the UKs constitution. And even if it did (which it doesn't as the UK doesn't have a single constitution) then it would still be below the concept that parliament is supreme.

All UK constitutional debate, discussion and discourse begins with the fact that parliament is supreme. Something that was proven to the world when it decided that a King was a head too tall for this world.

All else is convention and precedent.

So I say again, if you want a court higher than the Supreme Court, then look no further than parliament. Who could - if they so voted - abolish the Supreme Court in a trice.

It's true Blackwood et al described the makeup of the English system and noted the separation of powers that were formally incorporated into the US constitution. But there is nothing but good chap agreement in the UK about such a concept.

Anyway, in this case, a company obeying the law - ensuring single sex spaces are kept that way - would be immune to criminal or civil action.

I'm no lawyer, but I know the history bits.

(The trail of Charles I sometimes pops up in US court cases. amusingly enough)

I'm not going to go over it again.
You are under fundamental misapprehensions.

Of course, if I was wrong, I could be disproved.

So I say again, if you want a court higher than the Supreme Court, then look no further than parliament. Who could - if they so voted - abolish the Supreme Court in a trice.

Well yes. And then invade Poland. It would be about that level of disintegration into authoritarian dictatorship.

Getting a bit OTT really though in the service of a tiny number of men who feel they have some kind of right to non consenting women in a state of undress.

@WandaSiri the separation of powers is very different in the US. Each branch has distinct powers but also relies on the others to function effectively, preventing any one branch from becoming too powerful. This is achieved through the checks and balances written into the Constitution.

The big difference is it is possible to have a President of one party, while the other party can have the majority in both the House and the Senate. In the UK system the leader of the majority party becomes Prime Minister, but if they lose their majority the government collapses and there is an election. For example during Obama's Presidency from Jan 2015 - Jan 2017 the Republicans had total control of Congress - a majority in both the House and Senate.

It is often the case in the US that there is divided government where at least one House has a majority of the opposition party.

I am well aware that the US has a different system of government and legal system.

My post was about the system that pertains here. I was explaining to a pp (among other things) that the SC is indeed the highest court in the land and Parliament is not a court and cannot simply "overrule" SC decisions. It has to pass new law.

Edited for clarity

What do you think the Supreme Court is if not a court of law?

You're either grossly misinformed or deliberately spreading disinformation.

Separation of powers in the UK is by convention only. Actually all power vests in the King. The King has a government (“His Majesty’s Government”) and ministers, to function as an executive, and a parliament to write his laws and courts to interpret those laws. There’s a reason every judge sits under the royal arms - they’re representatives of the Crown.

Not so long ago the House of Lords did sit as a court, then it devolved its judicial function to the Appellate Committee of the house - the Law Lords.

Then parliament (by the King’s will, of course) passed that function off to a new court - the Supreme Court. but it still exercises the powers of the King.

the King can overrule the Supreme Court. But he’s not going to.

Separation of powers in the UK is by convention only.
And?
The judiciary, the legislature and the executive exist as branches - though the executive controls the legislature in practice.
Parliament is not a court, nor is Parliament the King.
The House of Lords no longer functions as a court and has not done for some time.

Parliament cannot overrule the SC decision. Nor can the government. Only a new piece of legislation duly passed can change the law as clarified by the SC.

Also - the phrase "the will of Parliament" has a technical legal meaning which the original poster appeared not to understand.