All seems a bit vague and circumstantial to me....
Summary of the High Court’s decision
The Court rejected the claims, and held that the interim update had accurately represented the law (and that the EqA was compatible with Convention rights).
As explained in more detail below, the Court commented that, whilst employers and service providers must comply with applicable law, neither the Workplace (Health, Safety and Welfare) Regulations 1992 (“1992 Regulations”) nor the EqA (read in light of For Women Scotland) impose a blanket rule in relation to access to facilities such as toilets. Each situation will turn on its own facts, and organisations should be guided by “common sense and benevolence”.
In both cases, there is an expectation that biologically single-sex toilets (or individual lockable rooms available for use by all) will be provided – in workplaces, because the 1992 Regulations require some form of single-sex provision, and in other contexts because failing to make single-sex provision could give rise an indirect sex discrimination claim.
Service providers
- There is no requirement for service providers to provide toilets on a single-sex basis, but they can choose to do so if it is a proportionate means of achieving a legitimate aim.
- Choosing not to provide any single-sex toilets might constitute indirect sex discrimination against women.
Single-sex (under the EqA) means biologically single-sex. If a service provider’s policy is to allow trans women to use the women’s toilets, those toilets are not single-sex, and:
the consequence of that is that a (biological) woman might be able to bring a claim for indirect sex discrimination against the service provider;
but the consequence is not that all biological men would also be entitled to use the women’s toilet. A (cis) man could bring a direct discrimination claim on that basis, but the question would be whether requiring him to use the men’s toilets rather than the women’s constituted “less favourable treatment”. There is a strong argument that – provided the toilets were materially similar – it would constitute “different but not less favourable treatment”. On a similar basis, a trans-inclusive women’s toilet could potentially justify excluding (cis) men on the basis that the limited provision was a “positive action” (benefitting cis and trans women) under s158 of the EqA; and the trans-inclusive toilets could still properly be labelled as “women’s” and “men’s” toilets.
- This finding was contrary to the EHRC’s interim update, which said that allowing trans women to use a women’s toilet meant that (cis) men would also be allowed to use it – but the Court held that the EHRC’s analysis was not “necessarily” wrong in all cases, and so its approach did not give rise to legal error.
- Allowing women to bring in their male children, or allowing access to male cleaners, would not compromise a facility’s single-sex status.
- If a service provider only offers toilets in the form of individual lockable rooms, it would be making adequate provision, and would not be discriminating against anyone.
- Providing only (biologically) single-sex facilities, and making no additional provision (in the form of trans-inclusive men’s and women’s toilets, mixed facilities, or individual lockable rooms) might well constitute discrimination against trans people. The EqA provides that the provision of single-sex toilets by a service provider will not constitute discrimination on the grounds of gender reassignment as long as it is a “proportionate means of achieving a legitimate aim”, [4] and the Court held that the proportionality requirement “tends against a situation” where single-sex provision requires trans people to use inappropriate toilets, or no toilets at all.
- As above, requiring trans people to use unisex or individual lockable toilets (instead of single-sex facilities) is not likely to be discriminatory.
- A provider who only had space for two cubicle-style toilets – with no ability to introduce additional facilities – would accordingly risk discriminating against biological women if they operated both toilets on a trans-inclusive basis. But they would risk discriminating against trans people if they operated both toilets on a biologically single-sex basis, and made no additional provision for trans people. In many cases difficult judgement calls are likely to be required.
Status of the judgment
As a High Court judgment, the decision is binding on the lower courts and tribunals, which is where most discrimination challenges will be heard. Unless and until it is successfully appealed or overruled by a higher court, it should be treated as the most authoritative statement of the law in this area. It takes precedence over the recent decisions issued by the Employment Tribunal, for example, which are not binding.
The judgment is not intended as comprehensive guidance, and leaves gaps that the EHRC’s updated Services Code (which is still with the Minister for Women and Equalities to approve) will presumably seek to fill in due course.
It is clear that cases will continue to turn on their own facts; employers and service providers will have to think carefully about what the law requires in their particular circumstances, and where the balance of risk lies.
https://www.localgovernmentlawyer.co.uk/governance/314-governance-a-risk-articles/99799-the-high-court-on-the-ehrc-s-interim-update