Author: David Green, Head of 12KBW Employment Team

Oh good. Another article about For Women Scotland v Scottish Ministers.

One week on from the Supreme Court delivering its judgment, I am unconvinced that there are rocks on the darker sides of the outlying planets of the solar system which are still unaware of its outcome. But there are some practical lessons for employers and other duty-holders which are not immediately apparent from the headlines and news coverage, and it is these I wish to highlight.

Lesson 1: single-sex facilities in workplaces

To recap the obvious and most widely-reported aspect of the judgment: the Supreme Court determined that, whenever the Equality Act 2010 (EqA2010) refers to the protected characteristic of sex (or to men or to women), those terms are to take the biological meaning of sex, and that only.

This means that – for the purposes of the Act – trans-identified persons are always considered to have their birth sex. This is unaffected by whether that person has a Gender Recognition Certificate (GRC) issued under the Gender Recognition Act 2004 (GRA2004) or not.

Employers are required to have certain facilities on a single-sex basis. These requirements are not found in EqA2010, but in the Workplace (Health, Safety and Welfare) Regulations 1992.

The requirements are:

  • That “sanitary conveniences” (i.e. toilets) must be separated for men and for women, except where they are contained in separate, lockable rooms (r20);
  • That washing facilities – where the washing extends beyond the arms, forearms and face – must also be sex-segregated, unless they are in separate lockable rooms and intended for the use of one person at a time (r21);
  • That changing facilities must be provided or used separately by men and by women, “where necessary for reasons of propriety” (r24(2)).

Schedule 23 of EqA2010, which contains the general exemptions from the Act’s anti-discrimination provisions (i.e. those which apply to all spheres governed by the Act: work, services, premises, etc), exempts at paragraph 1(1)(a) “anything done in pursuance of an enactment”.

The Supreme Court’s interpretation of “sex” (and, by extension, of the terms “man” and “woman”) has effect on how these single-sex requirements will be construed.

Employers are required to comply with the Regulations. Even leaving aside the question of how the Regulations themselves are to be construed (and it is likely, given the Supreme Court’s analysis of the provisions of EqA2010 itself, that the 1992 Regulations also refer to biological sex and that only): if employers comply with their regulatory duties on the sole basis of biological sex, they can rely on the Schedule 23 EqA2010 exemption as a complete answer to any accusation of sex or gender reassignment discrimination.

But if, on the other hand, an employer was to segregate toilet, washing or changing facilities on some other basis – say, permitting trans-identified employees with GRCs to access those facilities which correspond with their acquired gender; or allowing employees to choose facilities on the basis of self-ID – they would not be covered by the same discrimination exemption.

Lesson 2: avoiding discrimination in segregated workplace facilities

This has consequences for employers. If facilities are segregated, but not strictly by (biological) sex, an employee who could identify something less favourable resulting from the segregation – are the facilities as good? Is the waiting time longer? – can bring a claim of direct sex discrimination, to which the employer has no defence.

Even if the facilities are ostensibly identical, the EAT’s judgment in Earl Shilton Town Council v Miller [2023] EAT 5 is salutary. The council had both male and female toilets, but the women’s toilets were not accessible during hours when a playgroup used the building.

Ms Miller was told to use the men’s toilets, which had no external lock, and which contained a single cubicle and a trough urinal. The EAT upheld the Tribunal’s finding at first instance, that this was direct sex discrimination: Ms Miller as a woman was treated less favourably by being placed at risk of seeing a man use the urinals.

The implications of the combined effect of Earl Shilton and of For Women Scotland are far-reaching.

Say an employer provides changing facilities, separated generally by sex, but also permits trans-identified employees to access the changing rooms of their gender identify. This are not single-sex facilities (see lesson 1 above), so the Schedule 23 exemption does not apply.

But further: an employee in this workplace who is placed at risk of seeing a member of the opposite biological sex in a state of undress, or of having to undress themselves in front of somebody of the opposite sex, could, per Earl Shilton, call that risk less favourable treatment. That would apply even if each set of facilities is just as good in its set up and provision.

This scenario is reasonably similar to the basic facts of the Sandie Peggie case, which is currently before the Employment Tribunal in Scotland, and is one likely to be repeated in a large number of workplaces.

Employers keen to minimise their risk of successful discrimination claims would be well advised to ensure that all toilet, washing and changing facilities are now segregated strictly by biological sex, with no exceptions:

Lesson 3: what is a “single sex service” after this judgment?

Beyond workplaces, the most immediate impact of the judgment is on the exemptions which permit the provision of single-sex services and public functions, in Schedule 3 EqA2010. The permitted cases are as follows (in each case, where it is a proportionate means of achieving a legitimate aim):

  • Separately-provided services for each sex, where a joint-sex service would be less effective (paragraph 26(1));
  • Separately-provided services for each sex, where a joint-sex service would be less effective and it is not reasonably practicable to have a joint-sex service because the sexes require the service differently (paragraph 26(2));
  • A single-sex service, where only one sex has need of the service; (paragraph 27(2));
  • A single-sex service, where the service is also provided jointly, but providing only that joint service would be insufficiently effective (paragraph 27(3));
  • A single-sex service, where a joint service would be less effective, and the needs of each sex for the service make a joint service not reasonably practicable (paragraph 27(4));
  • Any single-sex service provided by a hospital or other “establishment for persons requiring special care, supervision or attention” (paragraph 27(5));
  • Any single-sex service, where the service is to be used by more than one person at a time, and a person of one sex might reasonably object to the presence of a person of the opposite sex (paragraph 27(6));
  • Any single sex-service, where there is likely to be physical contact with the service-receiver, and they might reasonably object to being touched by a person of the opposite sex (paragraph 27(7)).

Before the Supreme Court’s judgment there was some confusion as to how these provisions operated. The Supreme Court dispelled that confusion: each case set out above operates on the basis of biological sex, strictly and exclusively [211-221].

Schedule 3 does not require a service provider to provide separate- or single-sex services; it merely protects the service provider from charges of discrimination if they choose to do so, and that service satisfies one of the statutory exceptions.

However: service providers who provide services which are separated not on the basis of sex – e.g. by including those with GRCs in the sex class corresponding to their acquired gender, or by gender self-ID – will not be able to take advantage of these exceptions. However desirable the service provider might consider that to be, it is not a separate- or single-sex service, and so the service provider will be vulnerable to charges of sex discrimination from anybody excluded or separated.

This has a knock-on in the employment sphere, too, because where an employer provides some benefit, facility or service to the public and also something similar to their employees (e.g. a leisure centre allows its employees to use the public-facing saunas, which are sex-segregated), Paragraph 19 of Schedule 9 EqA2010 provides a corresponding exemption to claims of discrimination by those employees. In exactly the same way, therefore: if those facilities are not separated on a strict sex basis, their provider is vulnerable to claims brought both by service-users, and by employees.

Lesson 4: the coming storm – indirect discrimination

Some service providers (and employers who provide similar facilities to their employees) might consider that their preference for trans-inclusive services outweighs any risk of excluded individuals bringing claims of direct sex discrimination. Therefore, they can continue to have services or facilities which are generally segregated by sex, but where trans-identified users (with or without a GRC) can opt-in on the basis of their gender identify rather than their sex.

Such service providers should think about all of their legal risks before taking this step. In particular: the risk is not only of direct discrimination claims brought by those excluded from a service on grounds of their sex. It is also of indirect discrimination claims brought by users who are included in the service but who then have to share it with (trans-identified) members of the opposite sex.

Consider the sauna example given at the end of lesson 3, above, and a s19 EqA2010 claim for indirect discrimination:

  • The sauna provider (as service provider under s29, and/or as employer under s39) says that there is a men’s sauna, and a women’s sauna; but that employees or service users with a GRC can use the sauna which corresponds with their acquired gender.
  • That permission given in relation to GRCs, is a provision, criterion or practice (PCP) (s19(1)).
  • A woman using the women’s sauna, takes exception to the PCP.
  • The PCP is applied both to men, and to women (s19(2)(a)).
  • Does the PCP put women at a particular disadvantage when compared to men? The argument can certainly be made. It would depend on the nature of the service: something like a sauna, which involves both undress and physical proximity, would probably be capable of meeting this requirement. Earl Shilton (see above) was not an indirect discrimination case, but the concept of “disadvantage” is similar enough to “less favourable treatment” to allow an analogous process of reasoning.
  • Does the PCP put the complainant woman at that disadvantage (s19(2)(c))? If the disadvantage is being in close and intimate proximity to persons of the opposite sex, then the answer is probably “yes”.

This PCP is therefore ostensibly discriminatory, unless the service provider (/employer) can show that it was a proportionate means of achieving a legitimate aim – the justification defence.

It is hard to predict how a justification defence might play out; it would surely differ case by case, and in large part based on how the service provider chose to argue it. It is easy to see the courts and tribunals accepting that the aim pursued by a trans-inclusive policy is a legitimate one, but that is only one component of the justification.

Whether a trans-inclusive policy is proportionate involves a careful balance of the potential discriminatory effect of the policy, against the aims pursued by that policy and how else they might be achieved. The fact that a service or facility is of a category where Schedule 9 of EqA2010 envisages sex-segregation being justifiable is a relevant consideration, as would be the practicality and effect of providing trans-identified persons with a separate facility of their own.

This, however, is likely to be the focus of fresh claims where employers and service providers attempt to continue with facilities which are separated not strictly by sex, but by gender identity. Employers who wish to go down this route should brace themselves. Even an employer which is confident in its justification defence of such a policy would have to be willing to contemplate litigation, with all of the trouble and expense which goes with it, to see that through.