OK, so why the GLP lost and a few other points.
GLP argued that it was unlawful because it only addressed single-sex facilities and not not more general issues surrounding the PC of gender reassignment. The judge rejected this and said:
[70] A requirement to state the law accurately is not the same as a requirement to give a comprehensive statement – to include everything that could possibly be said.
GLP also argued that the Update failed to mention other things that it should have done – that there were omissions and so the Update lacked “balance”. Again, the judge rejected this at paras [86]-[89]
GLP also argued that procedurally the EHRC had got things wrong. Again the judge rejected this at [90]-[95]
Finally, the GLP argued that the Update was in breach of the Human Rights Act.
The judge rejected this and, after giving a detailed explanation of why, said:
[99] … On this analysis neither the EA 2010 nor the 1992 Workplace Regulations gives rise to any necessary interference with any aspect of the Claimants’ article 8 rights.
[100] However, even if that analysis is wrong, the Claimants’ case still fails. Even if there is a relevant prohibition on provision by a service provider or an employer of a trans-inclusive lavatory, and a consequent interference with article 8 rights, that interference would be capable of being justified taking into account the rights and freedoms of others. Justification would depend on the facts of any particular situation. Nevertheless, the fact that justification is possible and on many scenarios highly likely to be present, is sufficient to dispose of this ground of challenge.
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However, the overall judgment was a bit of a mixed bag (or curate's egg if you like).
These are just some points that stood out to me:
GLP made the argument (as best I can understand it) that although the 1992 Workplace Regs required there to be separate toilets and changing rooms for men and women, the Regs did not require an employer to ensure each was only used by the appropriate sex.
ie that there must be separate rooms but an employer could just allow anyone to use both rooms.
The judge utterly rejected this argument.
[36] I do not accept this submission. First, it places form over substance, disregarding the obvious purpose of regulations 20 – 21 and 24. The obvious albeit unspoken premise of regulation 20 is the provision of private space for each sex for reasons of conventional decency …
[37] Second, by reference to regulation 20, the Claimants’ submission cannot stand with the proviso in regulation 20(1)(c) that separate rooms containing conveniences for men and women need not be provided “… where and so far as each convenience is in a separate room the door of which is capable of being secured from the inside”. It is clear from this that the objective of regulation 20 is that men and women should use conveniences in separate rooms, not together in the same room.
[38] Third, the Claimants’ further contentions in support of their construction of regulation 20 are not convincing. The Claimants contended that a female lavatory does not cease to be single-sex if, for example, (a) it is cleaned by a man, or (b) a mother brings her young son to use the lavatory, or (c) a man uses the lavatory in an emergency. Thus they submitted it would be just the same were an employer to allow trans women to use a female lavatory. The Claimants refer to this approach as a “trans-inclusive lavatory” and I will refer to it in the same way in this judgment. However, the examples the Claimants rely on do not support their conclusion. Who cleans a female lavatory from time to time, is a matter entirely apart from whether that lavatory remains single-sex. The “emergency” example carries no weight precisely because it is an emergency – an event that is unplanned and driven by extreme circumstances. The example of the mother taking her young son to use the female lavatory is a bad example. That (and the corresponding practice for fathers and young daughters) is a common practice but is no more than a facet of ordinary parental responsibilities. No one could reasonably or seriously contend that when a mother takes her young son to use a single-sex female lavatory the lavatory ceases to be single-sex. Further, none of the examples above would be materially the same as the one of the employer who decided that the lavatories provided to meet the obligation under regulation 20 should be trans-inclusive. Rather, that employer has adopted a policy or practice to allow some biological males to use the female lavatory. An employer would not comply with the obligation under regulation 20 (to make sufficient provision in separate rooms containing lavatories provided for men and women, respectively) if he permitted the room for women to be used by some men and vice versa. That would go against the purpose of the regulation
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The judge also went on to say that the logic of their other argument that an employer would need to “police” the toilets was “… divorced from reality and from any sensible model of human behaviour.” [40]
However, the judge did go on to effectively say that employers must provide a separate toilet for trans identifying people:
[42] … where an employer provides lavatories as required by regulation 20 the consequence will not be that a transsexual person is required to use the lavatory that corresponds to biological sex. Rather, and in addition to complying with the requirement under the 1992 Workplace Regulations for “sufficient” and “suitable” lavatories the employer must also ensure that the lavatory provision he makes is not discriminatory on the ground of gender reassignment.
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The judge then used the same argument that the Supreme Court did in FWS to say that the GRA does not apply to the Workplace Regs.
GLP said that, for a man with a GRC, the correct comparator changed from being a man to being a woman. The judge said at [50] “I do not attach any weight to this submission”
He went on to mention the earlier case of Croft v Royal Mail and said at the end of [50]
“Taking these matters together, I do not consider that either Pill LJ’s reasoning or the notion that the relevant comparator for a claim of gender reassignment discrimination will change, can survive the reasoning in For Women Scotland.”
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He then considered if trans-identifying men were allowed to use the women’s toilet then would all men be allowed to use it.
He went through three relevant cases (incidentally, ones which my DH also used in his case against the WI – see my previous thread about that) about different treatment and whether that amounted to less favourable or not.
However, he came to the conclusion at [61] that allowing trans-identifying men access to the women’s toilet but excluding other men may be okay. He said:
[61] “Whether different treatment is also less favourable treatment is, therefore, a qualitative question … I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled “women”.)”
So, it’s not necessarily direct discrimination for a man, the judge says, but it still leaves open the possibility of women making an indirect discrimination claim for there being no single sex toilets for women
The judge went on to clarify this point:
[77] While I am less certain than the Interim Update that a man prevented from using the Claimants’ trans-inclusive female lavatory would be likely to establish the less favourable treatment necessary to make good a claim of direct sex discrimination, I do not consider that the way the point is put in the Update is necessarily wrong. Rather, it is a point that may turn on the facts of a situation.
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Just a few things I noticed in the judgment.