Sex Matters intervenes on single-sex services guidance
Sex Matters has been given permission to intervene in the judicial review being brought by the Good Law Project against the Equality and Human Rights Commission (EHRC).
The hearing on 12th and 13th November in London comes nearly a year after the Supreme Court heard the For Women Scotland case.
The Good Law Project is challenging the national equality watchdog’s interpretation of the Equality Act and workplace health and safety regulation, and its guidance, following the Supreme Court’s judgment, that employers and service providers should stop telling employees and service users that they can use opposite-sex facilities if they identify as trans or non-binary.
This is an important case which could provide greater confidence that the law is clear and that women should not find themselves forced to share “female” toilets, showers and changing rooms with men.
We hope that the judgment will provide greater confidence to service providers and employers and their frontline staff, to trans-identifying people and to women about what the familiar “male” and “female” signs on a door mean in terms of who is allowed in.
Whenever these kinds of cases are heard it is important that women’s experiences and viewpoints are considered, and not only the arguments of trans activists. Our evidence draws on our 2022 survey Why single sex services matter, to which some 7,000 people responded.
We have also been allowed to put in evidence on female biology from physiotherapist Elaine Miller and from Michelle Shipworth, a survivor of male violence in a women’s toilet. Sex Matters CEO Maya Forstater has provided evidence on the recent history of guidance and policy in this area, and the experience and concerns of women in relation to everyday privacy and dignity. These are written witness statements, supported by evidence, which we will publish. There is no cross-examination in judicial reviews.
As well as providing written submissions and evidence, Sex Matters has been given 30 minutes to make oral submissions to the court. We have made legal submissions on two points:
The proper construction of the Workplace Health and Safety Regulations 1992.
The detriments to women that arise when men (including those who identify as trans and non-binary) are allowed to access women’s toilets and changing facilities.
You can read our arguments in our application to intervene:
We are represented by Rupert Paines of 11KBW and solicitor Paul Conrathe. The interested parties in the case are the Minister for Women and Equalities, the Secretary of State for Work and Pensions, the Health and Safety Executive and the Scottish and Welsh Ministers.
What is the case about?
The Good Law Project (GLP) is challenging the EHRC’s April update on the practical implications of the UK Supreme Court judgment in FWS and its draft updated code of practice. In particular it is challenging the sections saying that in workplaces and services open to the public where separate-sex or single-sex services are lawfully provided:
“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.
where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided.
GLP is also seeking to challenge any future iteration of the guidance that makes the following assertions of law:
That references to “men” and “women” in the Workplace Health, Safety Regulations 1992 are to be construed as referring to a person’s “biological sex”.
That the workplace regulations require employers not to permit “trans women” to use the women’s toilets or “trans men” to use the men’s toilets.
That if trans men are permitted to use the men’s toilets, or trans women permitted to use the women’s toilets, this means that the toilets must be made open to all users of the opposite sex.
That where single-sex facilities are made available, it is lawful for trans men to be required to use the women’s toilets, and trans women to be required to use the men’s toilets, as long as they are not put in a position where there are “no facilities for them to use”.
That it is sufficient to ensure lawfulness (under the Human Rights Act 1998 and the Equality Act 2010) for trans people to be provided only “where possible” with unisex facilities in addition to single-sex facilities.
GLP argues against this that if the EHRC guidance is accurate on the law then the law itself is incompatible with the Human Rights Act 1998 and the European Convention on Human Rights.
We say that other people’s rights matter too.
How you can help
Please donate to support Sex Matters’ work on this case and others.
