Acting now on the Supreme Court judgment: Scottish Government premises as a case study

Introduction

Following the clarification of the law by the Supreme Court, the Scottish Government has repeatedly stressed the need for the EHRC to issue a revised Code of Practice on services, public functions and associations,¹ and any other guidance related to the judgment, before changes to policy and practice can be made.

For example, speaking in the Parliament yesterday, the Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, said:

Following publication of the EHRC’s update late on Friday evening, I wrote to ask the EHRC to confirm that it agrees that no public body, service provider or other association should issue specific guidance before the EHRC code of practice and guidance is finalised.

As the EHRC is the enforcer and regulator of the Equality Act 2010, all organisations must consider and comply with its revised code of practice and guidance to ensure that there is a consistent and clear understanding of the correct application of the law for all involved, in what is a complex area.

In some situations, however, it would appear very difficult to justify a delay in changing policies until further guidance is issued by the EHRC. This blog uses the Scottish Government’s own premises as a case study.

What sort of facilities?

On the Scottish Government estate, the main relevant single-sex spaces will be toilets. Some Scottish Government staff may also be entitled to changing rooms. Drawing on a recent Freedom of Information (FoI) response, this blog focuses on the availability of toilets.

The law on workplace toilets

The Workplace (Health, Safety and Welfare) Regulations 1992 require that ‘separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from inside’.

The Health and Safety Executive (HSE) are responsible for enforcing the Regulations. The minimum amount of provision needed for any given number of staff, which differs for women and men, is also set out by the HSE.

The Scottish Government’s policy

The Scottish Government’s relevant policy is its Trans and Non-Binary Equality and Inclusion Policy (see Example 2 here). This says that:

Trans staff should choose to use the facilities they feel most comfortable with, including using accessible toilets if they prefer.

The Supreme Court judgment

In determining that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Equality Act 2010, the Court noted (at para 265 (xiv)) that

There are other provisions whose proper functioning requires a biological interpretation of “sex”. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others (paras 210-228).

The EHRC has issued an interim update which sets out that the logic of the law, in the light of the judgment, is that if a service or space is designated as single-sex, then it cannot be open to any user of the opposite sex, as defined biologically, without ceasing to be single-sex.

Although the 1992 regulations are separate from the Equality Act, they are in effect tied to it, as explained here by employment barrister David Green.²

The Scottish Government estate

We asked the Scottish Government to list the buildings where it has legal responsibilities under the 1992 Regulations. We also asked for information on what proportion of toilets are provided in a separate room, lockable from the inside, with a wash-hand basin, intended for the use of one person at a time. That is, in a form that under the 1992 regulations could be used by someone of either sex (sometimes termed “gender-neutral”). We asked for this in total and for all buildings individually for which the information is held centrally

We also asked that, if toilets specifically designated for disabled use were included, what the figures would be, without these. As no figures were provided on that point, we assume the figures provided are exclusive of any accessible provision.

The Scottish Government responded that in its ‘core estate’, 18% of the total number of toilet facilities are provided ‘in the form where a toilet is in a separate room, lockable from the inside, with a wash-hand basin, intended for use of one person at a time’.

The percentage of such toilets in each Scottish Government building varies, as shown in the table below:

The main Scottish Government buildings, by size, are Victoria Quay, St Andrews House, Saughton House and Atlantic Quay. The table shows that in these, between 6% (Saughton House) and 32% (Victoria Quay) of toilets are gender neutral. In very large buildings with a lower percentage, the physical location of these might be relevant. However, as the policy in place already says that staff who do not wish to use toilets that match their sex may use accessible toilets instead, such provision is also relevant. The FoI response notes that all accessible toilets on the Scottish Government estate are gender-neutral.

There are some local field stations and fishery offices where there is no such provision, but these are now the exceptions. We assume most or all of these may well also have at least one accessible toilet.

Conclusion

In most Scottish Government buildings, the percentage of toilets which are provided in a fully self-contained separate room is already substantially higher than the percentage of staff who are recorded as having a transgender identity (0.6%).

At first sight, therefore, it is not clear what would stop the Scottish Government from withdrawing its existing policy now, as relates to toilets at least, and what difference further guidance from the EHRC might be expected to make, in all but a minority of its smaller buildings, if at all.

Doing this would ensure that the 57% of its staff who are female, in particular, are now provided with sufficient facilities in line with what the law requires, i.e. either actually single-sex, or else separate-room. The figures above show that that would still leave plenty of separate-room provision in place for any staff who up to now may have been using opposite-sex facilities.

Yesterday the Cabinet Secretary told MSPs:

…the Scottish Government expects all public bodies and agencies to act within the law and to obey the rule of law. That includes the Supreme Court judgment, but it also includes any other regulations, including the 1992 regulations.

In circumstances where obeying the law is so straightforward, the question for the Scottish Government is, why on earth would it risk not doing so now?

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Notes

1. The Code covers activities covered by Part 3 of the Equality Act , which deals with ‘the provision of a service to the public or a section of the public’ and Part 7 (associations), but not employer duties, which are covered by separate guidance. The current Code dates from 2011. The EHRC undertook a full consultation on it last year, and is now updating it in the light of the judgment. This should only require it to amend the content on Gender Recognition Certificates (GRC), as the law on self-identification was already settled prior to the case coming before the Supreme Court, and before before the consultation on the Code took place last year. All parties, including the Scottish Government, accepted in earlier rounds of the case that the only outstanding issue in relation to the Act was the effect of a GRC on a person’s sex. ↩︎
2. Note added after publication: discrimination lawyer and academic, James Murray, discusses further here in some detail the argument that the Regulations are not affected by the judgment (28) Do workplaces need to provide single biological sex toilets? | LinkedIn: “In conclusion, while FWS did not explicitly address the Regulations and their definition of women and men, it set out an analytical approach to their statutory interpretation and a logical framework of argumentation with respect to the Act which can equally apply to the Regulations. This has not (yet) been the subject of direct and explicit determination by the Court, but it is hard to see the courts or tribunals – in light of FWS – suggesting that the definition of men and women in the Regulations differs from the Act, i.e. it is biological for both.” ↩︎