Do retailers have to provide single sex toilets and changing rooms for their customers and staff?

Last month the Supreme Court decided that sex in the Equality Act 2010 refers to biological sex. Accordingly, when it refers to men, it means a person born male and when it refers to a woman, it means someone who is born female. These definitions are unaffected by a gender recognition certificate. Under the Equality Act 2010 a trans woman with or without a GRC remains a biological man and a trans man with or without a GRC remains a biological woman.

The Supreme Court went to great pains to say that people covered under the protected characteristic of gender reassignment have not lost any of their existing rights and can continue to bring claims if they face harassment or discrimination based on gender assignment or on their actual or perceived sex. 

This decision has not changed the law - but it has clarified how the law should have been interpreted. 

Many organisations have policies which have allowed users to self-ID into the spaces where they feel most comfortable, irrespective of whether they hold a GRC. I've seen many posts by trans people who feel that they are losing rights which they previously enjoyed and are angry and upset by the ruling. 

So where does that this judgment lead retailers whose policies don't comply with the law and who are worried about how to make changes without alienating users? 

There are two key issues to consider: those provisions that affect their employees and those that affect their service users. I'm going to consider customers first.

Single and separate sex provisions - customers

It is not compulsory for services that are open to the public to be provided on a single-sex basis or to have single-sex facilities such as toilets or changing rooms. The Equality Act permits retailers to provide separate male and female facilities where:

• they are likely to be used by two or more persons at the same time, and the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex; and
• providing joint facilities are ‘less effective'; and
• providing separate facilities is a proportionate means of achieving a legitimate aim. 

These exceptions are set out in Schedule 3, Part 7. 

The Supreme Court made it clear that protecting the privacy, safety and dignity of women is a legitimate aim and a proportionate response to achieving that aim is to exclude people of the opposite sex from sex segregated facilities. It confirmed that you are not required to undertake a case by case analysis and instead can operate a blanket policy that applies to everyone. 

What are the legal risks if you get this wrong?

If you already have single sex facilities such as toilets or changing rooms these must relate to biological sex. If you don't then they become mixed sex and you won't be able to rely on the gateway exceptions in the Equality Act with the consequence that you: 

• could be sued by service users who object to sharing facilities with members of the opposite sex; and
• by people of the opposite sex who also want to access the facilities.

This is more clearly set out by way of an example. If you allow trans women to access changing rooms restricted to females, any female service user who objects can bring a claim against you in the civil courts. They may be able to argue that operating mixed sex facilities amounts to direct discrimination on the grounds of their sex, or bring an indirect sex discrimination claim based on group disadvantage. A biological male who doesn't identify as trans could also bring a sex discrimination claim if he is excluded in circumstances where other biological men aren't.

It's important to recognise that if you meet the gateway provisions in Schedule 3, Part 7 it is not gender reassignment discrimination to exclude someone from a single sex space that does not align with their biological sex (s28). Therefore, whilst you may get pushback, anyone who brings a claim based on gender re-assignment discrimination is unlikely to succeed.

If you have separate sex facilities, and you have enough room, consider adding a gender neutral option available for anyone to use. 

How do you enforce your policy?

You are not required to have people at the entrance of your facilities to ‘police’ them but you will need signs which make it clear which facilities people should use. Signs and policies that promote ambiguity are likely to mean that you will not be able to show that you are meeting the gateway conditions for providing a lawful separate sex facility. Your staff should also reinforce your rules if customers ask them for advice and address any complaints you receive.

In reality the likelihood of most service users (as opposed to employees) bringing a discrimination claim may be low. That's because they have to issue a claim in the civil courts, rather than in an employment tribunal. This means they have to pay a court fee, and if they lose, are likely to have to pay some of their opponent's legal costs. 

The risk of being on the receiving end of a costs order puts most people off. But that may change. Last year the government launched a call for evidence on whether it should extend costs protection to discrimination claims to ensure that individuals have access to justice. That consultation has ended and we await the government's response.

Whilst the litigation risk is low, there's no doubt that people who feel strongly about this issue will bring claims. We've seen a huge increase in the number of people - particularly women - using crowd funding sites to raise money to bring discrimination claims against their employers and organisations. These types of cases attract a lot of publicity that isn't just confined to social media and can cause significant reputational damage. 

Can the Equality and Human Rights Commission take enforcement against you?

The Equality and Human Rights Commission can take action against organisations that breach the Equality Act. It has the power to: 

• investigate suspected breaches
• serve unlawful act notices, approve action plans and enter into legally binding agreements with organisations to address ongoing issues and prevent future breaches; and
• assist with or intervene in certain disputes

The EHRC's enforcement arm is in the public domain and details of its investigations are available on its website.  

Single sex toilets and changing rooms - employees

The single and separate sex provisions set out in the Equality Act do not apply to workplace toilets or changing facilities (unless they are jointly used by customers or other service users). Employers have to comply with the Workplace (Health, Safety and Welfare) Regulations 1992 which stipulate that: 

• separate toilet facilities are available to men and women unless each toilet is in a separate room with a lockable door (which should be floor to ceiling and contain its own washbasin) (Reg's 20 and 21); and
• changing rooms provided to enable employees to change into and out of their work clothes are segregated by sex (Reg 24)

Sex in this context is not defined but is highly likely to mean biological sex. It's true to say that the Supreme Court didn't expressly consider these regulations in its judgment which focused exclusively on the interaction of the Gender Recognition Act 2004 and the Equality Act 2010. But, the way it reached its decision on that issue is instructive. 

Generally, someone with a GRC changes their legal sex for ‘all purposes’ (s9(1)). However, that is subject to exceptions made by the Act or in any other act or subordinate legislation (s9(3)). The Supreme Court said someone's legal sex doesn't change for the purposes of other legislation if it would make that legislation incompatible or unworkable. 

The 1992 Regulations were put in place to implement a 1989 EU Directive about health and safety and deal with 'propriety'. The Supreme Court recognised that females, as a biological sex class, have a health and safety interest in being separated from biological males and it's  difficult to see how interpreting sex in the 1992 Regulations to include people with GRC's would not render their purpose unworkable for the same reasons the Court identified in respect of single and separate sex spaces in the Equality Act. Plus, it would put the Regulations at odds with the single and separate sex provisions in the Equality Act which would lead to absurd results - particularly if the same facilities are used by customers.

What are the legal risks if you get this wrong?

If you have separate toilets or changing facilities for males and females but allow staff to choose which one to use based on their gender identity, you face the same risks as identified above. However, unlike customer complaints, your staff can bring claims in the employment tribunal for discrimination. And they can do that whilst continuing to work for you.

Trans people who object to the policy may argue that it indirectly discriminates against them on the basis of their gender reassignment. However, such claims are unlikely to succeed because employers will be able to justify their policies by reference to the 1992 regulations.  

Converting all of your toilets to gender neutral toilets doesn't ameliorate those risks. Mixed sex facilities may indirectly discriminate against those women who need single sex facilities for their privacy, dignity and autonomy. That might be for religious or cultural reasons or because they want privacy when they are menstruating. 

It may also be direct sex discrimination. For an example of a successful claim where a female employee did not have access to a toilet for the exclusive use of women, click here. 

Rather than doing away with separate facilities, a better option is to provide a third gender neutral option available for anyone to use if that's possible. That is certainly what the Equality and Human Rights are suggesting in their interim update on the impact of the Supreme Court's judgment. However, that doesn't mean that you should re-label your existing accessible toilets without considering whether doing that will adversely impact other people - such as disabled users who may not be able to use any other facility and will be disadvantaged by the arrangement. 

It's about balancing competing rights and reaching the most defensible position you can. Take advice from a specialist if you are not sure what to do for the best.

How do you enforce your policy?

If you've allowed staff to self ID into toilets/changing rooms that don't align with their biological sex, you will need to put in place a new policy and communicate this to your staff. Whilst you need to be clear I'd suggest that you avoid blunt messaging. Trans people will feel that they have lost privileges they've enjoyed in the past, may worry about being outed if they use gender neutral facilities and are likely to raise grievances about their treatment if you don't handle these communications with care and sensitivity. 

I suggest that you avoid sending out messages which express sympathy with one protected group as you will expose your organisation to charges that you are partisan and have ‘picked a side’. And these sorts of communications will be disclosable in any legal proceedings and will be used by your opponent to undermine your credibilty.

Explain in neutral language what the Supreme Court has said and why you have to follow it. Invite individuals who are concerned about the change in approach to speak to their line manager (or other appropriate person). 

You will also need to prepare your managers to have difficult conversations and give them additional support and training to handle these sensitively and lawfully.  

Ultimately, it is a reasonable management instruction to ask your staff to comply with your policy. If they don't they you are entitled to take disciplinary action against them.

Instruct an expert

We have a specialist group of employment lawyers who can advise you about your obligations under the Equality Act and have experience helping organisations who wish to provide single and separate sex facilities to comply with the law. Please contact Jenny Arrowsmith for more information.

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