Separate sex toilets: High Court rules EHRC interim guidance is lawful

Background

In April, the Supreme Court handed down its judgment in For Women Scotland v The Scottish Ministers. It held that the meaning of sex in the Equality Act 2010 is unaffected by a Gender Recognition Certificate. Accordingly, references to men and women in the Act relate to biological sex.

Shortly afterwards, the EHRC published interim guidance which focussed on the provision of separate sex toilets in workplaces and services open to the public. It contained several statements including this one: 

“trans women (biological men) should not be permitted to use the women's facilities and trans men (biological women) 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”.

The political campaign group - the Good Law Project and three individuals affected by the guidance brought judicial review procedings against the EHRC arguing:

• The guidance misstated the law and the EHRC had acted unlawfully in publishing it; and
• Even if the guidance correctly stated the law, it was incompatible with Convention rights.

Decision of the High Court

The High Court said that the Good Law Project was not personally or directly affected by the guidance and it struck out its claim. However each of the claimant's were affected by the guidance and the court addressed their arguments.

1. Was the guidance wrong in law? 

The High Court accepted that the EHRC is duty bound to provide accurate information about the Equality Act and must act in accordance with its statutory duty to promote awareness and understanding of the Act. 

The guidance referred to the single/separate sex exceptions in the Equality Act relating to service providers and the 1992 Workplace Regulations. The court concluded that neither piece of legislation provided a comprehensive code on what form toilets must be provided or who must use them. 

The Equality Act sets out the circumstances in which service providers can (but are not required) to provide single or separate sex facilities provided it is proportionate means of achieving a legitimate aim. And, the 1992 Regulations, which only apply to workplaces, set out what employers need to do to provide “suitable” toilets for their staff. There is nothing to stop employers from making additional provisions.

Workplace toilets

The claimants argued that the 1992 Regulations focussed on the provision of facilities and didn't impose any restrictions about how they can be used. Accordingly, employers could adopt policies which allowed trans employees to use the facilities that aligned with their gender identity rather than their sex.

The High Court rejected that submission. It said “the obvious albeit unspoken premise [in respect of toilets] … is the provision of a private space for each sex for reasons of conventional decency”. The wording of the Regulations was clear: men and women should use conveniences in separate rooms, not together. 

The claimants' sought to argue that allowing trans women into female toilets didn't change the single sex nature of the facility. They drew on examples such as a male cleaner or a mother bringing her young son into the toilet to support this. The High Court said these were bad arguments. It concluded that if an employer adopted a trans-inclusive policy which allowed biological males into the female toilets (and vice versa) it would go against the purpose of the 1992 Regulations. In other words, they would no longer be separate sex facilities.

The High Court also rejected the argument that employers would have to “police” who uses their toilets. This argument was “significantly overstated” and “divorced from reality and any sensible model of human behaviour” as employers had every right to expect their staff to follow their policies.

It also rejected the argument that reference to men and women in the 1992 Regulations related to certificated sex, rather than biological sex. Accordingly, trans people with a gender recognition certificate retained their biological sex for the purposes of those regulations. 

The High Court made it clear that it's conclusions about the 1992 Regulations should not be looked at in isolation. Employers have a duty not discriminate against individuals or groups who are protected under the characteristic of gender reassignment. It said that employers should not force trans people to use the toilets which correspond to their biological sex and suggested that additional facilities should be provided. The interim guidance reflected this point.

The claimants' all said they were concerned about using unisex or accessible toilets where single-sex ones were also provided. The High Court said that in terms of public loos, “it ought rarely, if ever, be the case that a person using a unisex lavatory rather than an available single-sex one will ever be a matter of comment by others”. 

And in terms of workplace toilets which could lead to gossip, this “is a burden that anyone can expect to bear from time to time, and ought not to be a foundation for legal redress”.

The High Court suggested, however, that some of the sensibilities around using accessible or disabled toilets could be resolved by using different signage. 

The High Court therefore concluded that the interim guidance contained no errors and accurately stated the law. 

2. The guidance was incompatible with Convention rights

The claimants argued that the statements made in the interim guidance breached their human rights - specifically article 8 which includes protecting an individual's personal identity. 

The High Court rejected this because:

• The Strasbourg jurisprudence (particularly its decision in Goodwin) was confined to recognising the civil status of trans people; and
• It was possible for employers and service providers to provide additional facilites for trans people to use  

But even if it was wrong about that, and law did interfere with the claimants' article 8 rights, it was could be justified (depending on the facts) taking into account the rights and freedoms of others.

Why this case matters

Decisions of the High Court of England are not binding on tribunals or the EAT but they are persuasive. However, its notable that this is the second time a court/tribunal has decided that the 1992 Workplace Regulations require toilets to be separated by biological sex unless they are contained in individual rooms with floor to ceiling lockable doors.

We understand that the Good Law Project and the claimants have lodged an application to appeal this decision to the Court of Appeal. If that appeal goes ahead it will bind lower courts. 

This decision only relates the interim guidance which has been withdrawn. The court was not asked to consider the draft code of practice for services, public functions and associations and it made no findings about this. That guidance was submitted to the government in September but has not yet been put before parliament for reasons that are not entirely clear.

Many organisations still haven't considered whether their policies around toilets and changing rooms are legally sound. Some erroneously believe they need to wait until the EHRC Code of Practice is approved by the government before doing anything. We still don't know when that might happen, but it's worth remembering that whatever the guidance does say it won't change the law. 

Need help? 

We have a specialist group of employment lawyers who can advise you about your obligations under the Equality Act and the 1992 Workplace Regulations. Please contact Jenny Arrowsmith for more information.

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