The Scottish Government has dropped its unlawful toilets policy
On 30th September, Sex Matters lodged a petition for judicial review of the failure by the Scottish Government to restore and protect the provision of single-sex toilet facilities in its buildings.
Our legal challenge was against paragraph 4.6 of the Scottish Government’s Trans and Non Binary Equality and Inclusion Policy, which said: “Trans staff should choose to use the facilities they feel most comfortable with.” This meant allowing male staff into women’s toilets and changing facilities. We said that this was authorising harassment related to sex, and was unlawful.
Following news reports last week of this change, the Scottish Government’s lawyers have now confirmed to us that it has removed this paragraph from the policy. We can now confirm that we have written to the Scottish Government withdrawing our application for judicial review.
Officials had previously made various excuses for inaction, including that “changes will be consulted on”, that they were waiting for “clarification from the EHRC” (Equality and Human Rights Commission) and even the fact that the Good Law Project is challenging the EHRC on its interim guidance. Finally they argued that “current provision complies with workplace regulations”.
Our legal challenge argued that in maintaining the policy of allowing men to use women’s toilets (and vice versa) following the For Women Scotland judgment, the Scottish Government was acting irrationally and, therefore, unlawfully. After sending our letter before action and engaging with officials, we instructed our legal team (David Welsh of Axiom Advocates and Rosie Walker at Gilson Gray) to lodge the petition for judicial review.
Now, finally, faced with legal action, the government has changed its position and removed the instruction to allow trans-identifying staff to use opposite-sex facilities, so we have dropped this legal challenge.
But so far the Scottish Government has made the change quietly, and it appears to continue to think that a different option might emerge from consultations, other than being clear about rules and expecting all staff to follow them.
The Scottish Government’s lawyers told us the “change was made and communicated to staff covered by the Policy, amongst others” and that it is an interim step as the policy “is reviewed and there is engagement with staff and formal consultation with unions”.
We are glad that it has removed the paragraph, but doing this quietly isn’t good enough.
It has been reported that the Leith branch of the PCS union has briefed its members to continue to act in defiance of the law and “use whichever bathroom makes sense to you” and that women who challenge biological men in women’s spaces can still be accused of “bullying and harassment”.
We have written to the Scottish Government asking it to confirm four things:
It recognises that a man going into the women’s facilities (other than for cleaning or maintenance, where a sign is generally put up) is likely to be undertaking unwanted contact which meets the definition of sex-based harassment.
As a result of the policy change staff who identify as trans or non-binary staff are NOT authorised to use facilities provided for the opposite sex.
This has been communicated to all staff.
It has been made clear to relevant staff that trying to access opposite-sex facilities is unacceptable behaviour and may be considered as such in line with your disciplinary policy and procedures.
No visitors to Scottish Government buildings will be authorised or permitted to use facilities provided for the opposite sex.
We have also asked the EHRC to remind the Scottish Government of the preventative duty against sexual harassment.
Summary of the legal arguments
Read our petition for judicial review and a briefing on the legal arguments.
For the purposes of the Equality Act 2010, the Scottish Government is both a service provider (to members of the public) and an employer. It is unlawful for a service provider to harass those to whom its service is provided, and unlawful for an employer to harass an employee.
Harassment means engaging in unwanted conduct related to a relevant protected characteristic where that conduct has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The entry by a man into a toilet or changing room which has been designated for the use of women is, for the women, unwanted conduct relevant to a protected characteristic (sex) which has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for those women. It is therefore unlawful.
As the Supreme Court has made clear, the terms “men” and “women” take their ordinary, biological meaning. A man who identifies as trans or non-binary (perhaps changing his name or aspects of his appearance) remains a man for the purposes of the Equality Act. The effect of the policy in authorising or approving trans-identifying men to choose to use women’s toilets and changing rooms is to authorise or approve of harassment of female employees and members of the public.
The Scottish Government is also required by health and safety regulations to provide sufficient toilet facilities for male and female employees. These must be provided as separate facilities on the basis of biological sex, apart from where they are provided as single-user fully enclosed facilities (sometimes known as “superloos”). Around 18% of the toilets provided in Scottish Government buildings are unisex superloos. Most of the toilets, as would be expected, are provided as traditional rooms containing separate-sex facilities.
Health and safety regulations do not just concern provision of infrastructure by an employer, but also concern the instructions given to employees on the correct use of equipment and facilities. The respondent’s policy of allowing men to use women’s toilets (and vice versa) means that it is not compliant with its duties as an employer.
We argued that there is no guidance from the EHRC that could make trans inclusion policy lawful. And the Scottish Government was not permitted to choose to continue to act unlawfully pending the issuing of guidance. We said that it should get on with complying with the law.