Following the recent judgment in the Supreme Court (SC) case For Women Scotland Ltd v The Scottish Ministers, the Equality and Human Rights Commission (EHRC) has provided guidance on the practical implications of the ruling.
As you may recall from our December employment law update (which can be found here) the the key issue to be determined by the SC in this case was how the protected characteristic of “sex” in the Equality Act 2010 (EQA 2010) was to be interpreted. The SC ruled that, for the purposes of the EQA 2010, a “woman” is a biological woman or girl (someone who is born female) and a “man” is a biological man or boy (a person born male). They confirmed that, for the purposes of the EQA 2010, someone who is transgender (“trans”) does not change sex for the purposes of the EQA 2010, even if they have a Gender Recognition Certificate.
Key takeaways from the ECHR interim guidance that are relevant to employment law are:
1. It is compulsory to provide sufficient single-sex toilets, as well as sufficient single-sex changing and washing facilities where these facilities are needed.
Trans women should not be permitted to use the women’s facilities and trans men should not be permitted to use the men’s facilities, as this will mean they are no longer single-sex facilities and must be open to all users of the opposite sex.
2. Where trans women are not permitted to use men’s facilities, and trans men are not permitted to use women’s facilities (in circumstances where it is legal to not permit this), trans individuals should not be in a position where there are no facilities for them to use.
3. Where possible, mixed-sex toilet, washing or changing facilities, in addition to sufficient single-sex facilities, should be provided.
4. Where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men.
The EHRC has confirmed that updated guidance will be available in due course, and they aim to provide their updated Code of Practice (on the application of the EQA 2010) to the UK Government by the end of June for ministerial approval.
If you have any queries or concerns about this ruling and how it could impact your organisation, please do not hesitate to contact a member of our employment law team, Laura: laura@mcmsolicitors.co.uk or Holly: holly@mcmsolicitors.co.uk.
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