For Women Scotland -v- The Scottish Ministers: The Seven Red Flags for Employers - Peter Daly
So much excellent material has already been written about the FWS judgment. As well as the pieces I highlighted previously by Julie Bindel (link), Kathleen Stock (link) and Susannah Rustin (link), I would also add the articles by Janice Turner (link), Akua Reindorf KC (link), Elizabeth McGlone (link), Sonia Sodha (link), Denis Kavanagh (link) and of course Dr Michael Foran (link) whose academic work was relied upon by the Supreme Court in reaching its judgment. There's also an incredibly helpful and detailed (almost paragraph by paragraph) commentary on the judgment here by the Legal Feminist collective.
Rather than consider “how did we get here?”, I wanted instead to look at “where do we go now?”. More specifically, I want to look at the implications for employers, and deal with the question of what organisations need to do now. But in order to do that, some degree of "how did we get here?" is inevitable.
Do you have a problem? Short answer – yes. Yes you do.
The judgment doesn’t change the law, it only clarifies what the law has always been. You might therefore think, if nothing has changed, nothing needs to be changed. But that approach would be mistaken.
The reason for this is that there has been a very significant and very widespread misinterpretation of the law over the past decade or more. This ought to be obvious from much of the reaction to the Judgment - if there wasn't a problem, and the law as now restated has been properly understood and applied all along, then there wouldn't have been such a strong reaction to it.
The major cause of this is that the legal and HR sectors have failed spectacularly to do their job over the past decade and more. Rather than weed out misstatements of law and ensure legal compliance, they have instead fed and watered the misinformation. A huge system failure has occurred.
The HR sector might be forgiven for getting things so wrong, because so much of the legal advice underpinning their approach was so wrong. This is the Law Society's own template policy (as of this morning - expect it to be withdrawn very soon):
This policy is wrong as a matter of law.
At the risk of stating the bleedin' obvious: single sex spaces are spaces which are for a single sex. Separate sex spaces are spaces in which the sexes are separated. (I acknowledge here that “spaces” isn’t the correct legislative language, but it is a shorthand I am using to refer to toilets, changing rooms and communal accommodation facilities in workplaces). Gender identity and Gender Recognition Certificates are effectively irrelevant in deciding who does and does not have access into a single sex space. This obvious and banal truth – now confirmed by the Supreme Court – has always been obviously and banally true. But it has not found its way into the HR canon.
Instead, the typical HR policy will provide that people can use the facility with which they identify with, or with which they feel most comfortable. This is done often for admirable aims - most typically inclusion or inclusiveness - which is well-intentioned. But it is not lawful, and the effect is that it places women in a space with men when they require dignity and privacy. The intention may have been inclusion, but this effect is exclusionary towards women.
People of the “wrong” sex are excluded from single-sex spaces, so men (as defined by sex and not any other consideration) are excluded from women’s spaces. This is exclusion and it is discriminatory on the basis of male sex. But it is not unlawful, because of the provisions of the Equality Act which render it lawful.
Specifically, a policy which maintains a single sex space is indirectly discriminatory to members of the excluded sex. But it is justified by the statutory defence to indirect discrimination, because it is a proportionate means to achieving a legitimate aim.
The legitimate aim is (in most cases) to protect the privacy, dignity and safety of women. We know that this is a legitimate aim, because it is referred to as such in the FWS judgment - see paragraphs 211, 213, 217 for example, but also paragraph 52:
We also know that it is a legitimate aim to provide single sex spaces in the workplace, because it is a statutory requirement - regulations 20, 23 and 24 of The Workplace (Health, Safety and Welfare) Regulations 1992 (link).
And it is a proportionate means of achieving that legitimate aim because, if you let some people of the “wrong” sex into single-sex spaces, those spaces are by definition no longer single sex. They’re mixed sex. If you need to provide a single-sex space for women (and you do), the only proportionate means of doing so is to provide a single-sex space. The proportionality test could not be easier to meet.
Naomi Cunningham has identified a great analogy for this – the peanut free meal. If a meal is advertised as peanut free, it must have no peanuts in it. None. Or it’s not peanut free and you must not label it as such. So it is with single sex spaces.
The FWS judgment puts it as follows (paragraph 213 - dealing with people with a GRC, but doubly relevant to people without a GRC):
If your organisation retains a policy that doesn’t recognise that single-sex spaces are, in fact, spaces that are available only to people of a single sex, your organisation is authorising unlawful discrimination against your female staff.
How do you know whether your policy is unlawful? Read it. Look for these seven red flags – the more of them you spot in your policies, the higher the likelihood that you have a problem (and bear in mind that even one of them might be a very serious problem indeed):
1. Your policy allows males to identify into women's single-sex spaces
This is straightforwardly an unlawful policy. You are discriminating against your female staff. You have a problem.
2. Your policy uses the phrase "case-by-case".
A common misrepresentation of the law has been that single sex spaces can be provided, but that people of the opposite sex can only be excluded on a case-by-case basis. In other words, a space can be female-only, but every time a male wants to enter, their admission has to be separately considered. An assessment has to be carried out, regarding this specific male into this specific space, on this specific occasion. And it has to be repeated on every occasion.
This is, and has always been, nonsense. In practice, nobody has the resource to carry out this logistical task, which means that people of the "wrong sex" are never excluded. A case-by-case single-sex policy is therefore effectively a policy which prevents single-sex provision.
If you have a policy that requires “case-by-case” assessment for a male person being refused entry to a female-only space, you have a problem.
3. You have a policy of not applying "Blanket Bans" – referring to people of the opposite sex being refused entry to a single sex space.
As soon as a person of the opposite sex is admitted into a single sex space, that space by definition ceases to be single sex: it has people of both sexes within. At that point, there is no lawful basis for refusing admission to any person of the opposite sex, regardless of their gender identity or certification.
It is therefore the case that single sex provision, by definition, positively requires a blanket ban. If your policy tells you not to have a blanket ban, then your policy prevents you from having single sex spaces – and you are almost certainly running foul of the 1992 Regs.
There may be circumstances in which a blanket ban is relaxed – for example if the ladies' loos are flooded, provision has to be made for women to be able to use the gents' loos temporarily while the plumbing is fixed. But these situations are exceptional. The norm, apart from those exceptional circumstances, is – and is required to be – a blanket ban. If you have a policy which says the opposite of this, you have problem.
4. Your policy refers to "Gender" as a protected characteristic (or, alternatively, “gender” is used as a synonym for sex).
There are nine protected characteristics. "Gender" is not one of them. A policy which refers to gender as a protected characteristic is usually a policy which elides the protected characteristics of sex and gender reassignment. The FWS judgment is an 88 page explainer of why that approach is contrary to law. If you have references to the standalone term “gender” in your policies, you have problem.
5. Your policy was drafted by a staff network.
If your organisation’s approach to a question of law is determined by people whose qualification has nothing to do with their knowledge of law, you need to scrutinise it very carefully. Lived experience is important, and there’s nothing wrong with staff networks per se. But if they’re setting policy, they’re very often setting wrong policy. If a staff network has set your policy with little or minimal oversight, you have a problem.
6. Your policy draws on advice from any of Stonewall, Gendered Intelligence, Mermaids, Global Butterflies, LGBT Foundation or GIRES
These are the organisations who have most actively promulgated the wrong legal approach to these issues. These are the well from which the confusion has been drawn. If they’ve written – or even contributed to – your policies, you have a problem.
Returning for a moment to the Law Society's template policy, which I have screenshot and criticised above, here is a screenshot of the list of organisations that the Law Society recommends law firms should turn to for advice in its "HR Guide". It's no wonder they got it wrong.
7. Your organisation has ever been a Stonewall Diversity Champion (especially if it ever been featured on the Stonewall Workplace Equality Index).
Stonewall's Workplace Equality Index positively required (and I think still requires) employers to impose policies which are unlawful. If your organisation is on the WEI list, and even if you have ever submitted an application to be on the list, you have a problem.
"OK. I have a problem. What do I do now?"
You need to read your policies, identify any of the red flags above, and withdraw any policies which do not provide genuine single-sex sanitary, washing or changing facilities.
Take advice on drafting new policies. Choose your advisers carefully, and ensure that they have properly understood why FWS has highlighted the extent of the problem.
"I have trans staff. How do I accommodate them?"
The straightforward answer as regards Trans Men (that is, people born female but identifying as male) is that they may use male single sex spaces. This is an exception to the peanut analogy which is a proportionate means of achieving a legitimate aim. It is identified at paragraph 221 of the FWS judgment (which was dealing with the single sex exceptions in services, but the same reasoning applies equally to single-sex spaces in employment):
[EDIT: Please see the comments below for further discussion about this, and the postscript at the end]
But as regards the specific solutions required, the answer to this will vary from employer to employer and even from office to office. Unisex toilets (that is, facilities in which one loo and one sink are behind a single lockable door) are the ideal, and many workplaces will have them. Those that don't will need to identify a lawful alternative. You will need to approach this in a bespoke way, and you will probably need bespoke advice.
In a situation where a change in current practice leads trans staff to feel like they are losing something, they may - justifiably - feel aggrieved. But it is a matter legal compliance and litigation risk, and any friction that arises from a change underlines the cost of implementing bad policy based on incorrect advice.
And it's also the case that female staff may well have felt aggrieved for being denied lawful single sex provision up to now - and those staff may have the right to bring litigation if they are denied their legal entitlements. Two ongoing cases (the "Darlington Nurses" and Peggie -v- Fife Health Board demonstrate what happens to organisations when those cases are brought. If you're not familiar with those cases, google them.
Many employers are now in the invidious position of having procured advice from apparently reliable sources but nonetheless finding themselves operating in breach of the law. There needs to be a full and honest period of self reflection about this from the legal and HR sector.
I doubt it will follow.
This article is written in a personal capacity and does not represent the views of any other person or organisation.
POSTSCRIPT
Please see the comments below this article from Maya Forstater, Audrey Ludwig, Stefan Cross KC, Matthew Brealey and others, regarding the section above about trans men.
These are the reasons why I reached that view.
Firstly, trans men, given the choice, would more likely prefer to use the gents rather than the ladies, since this is the sex that aligns with their gender identity. As a consequence of that, I don't think it's really a question of trans men being allowed to use the ladies, because (albeit that an exception to this must conceivably be possible) they won't want to.
I don't think the privacy and dignity of men is given the same degree of significance by the Supreme Court as it gives the privacy and dignity of women. The dignity of men is referred to in para 211 as regards a medical setting (prostate screening), and in para 217 (homeless shelters) which I think are a different class of setting than a workplace loo. But as regards women, these considerations are referred to far more frequently.
I think this is a reasonable reflection of the realities of life for men vs women - privacy and dignity attach different degrees of importance and significance between the sexes. That is not to say that it is not important for men, but it is not as important as it is for women. A demonstration of this - there are no cases in which the presence of transmen in the men's facilities has been objected to by men (but the opposite is true of transwomen in the women's facilities).
I agree that it is indirect sex discrimination against men, because it is a PCP that provides that men are having to share facilities with members of the opposite sex while women are not, which is a disadvantage. My query on it though is whether it is a substantial disadvantage - and, if it is, whether or not it is a proportionate means of achieving a legitimate aim - to maintain the segregation of the female space (the ladies' loos), informed by the greater focus placed on the privacy and dignity of women by the Court.
On the degree of passing, which was raised by Stefan - and here I am having to revert to stereotypes, which gives me very significant pause - the degree of "passing" differs significantly between the sexes. Testosterone is a hell of a drug. It changes the body (in male puberty for transwomen, and in external dosage for transmen in transition) in ways which, fundamentally change a person's size, shape, facial and body hair.
But all of that said, the commenters have convinced me that it the answer is not as straightforward as simple admission to the men's. As rare as it is that substantial disadvantage will be caused to men, it's possible that it will be caused. And the 1992 regs are clear (reg 20(2)(c)) that "separate rooms containing conveniences are provided for men and for women", which precludes the transman in the male loos. And the extent of passing is really neither here nor there, because it will inevitably vary from person to person, even allowing for the effects of testosterone. Stereotypes are not a good basis on which to proceed.
Each situation will have to be determined on its merits, based on the individual employee concerned and the available facilities in each workplace. Unisex loos are the ideal situation, but where those aren't possible then alternative arrangement will need to be found for the individual. It's less ideal, but there it is.
Thank you to everyone who commented.
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