THE UK’s human rights watchdog has been forced to change its guidance on single-sex spaces amid a legal challenge against its interpretation of the Supreme Court ruling on trans rights.
In April, the UK’s highest court ruled that the words “woman” and “sex” in the Equality Act 2010 refer to biological sex and are not affected by a trans person acquiring a gender recognition certificate (GRC).
Nine days later, the Equality and Human Rights Commission (EHRC) issued guidance stating that the ruling meant that “in workplaces, it is compulsory to provide sufficient single-sex toilets”.
The guidance was subject to a legal challenge by Good Law Project, who argued that the EHRC guidance is either wrong in law or, if right, breaches the UK’s obligations under the Human Rights Act 1998.
Good Law Project said at the time: “Put shortly, the definition of ‘man’ and ‘woman’ in the Equality Act 2010 does not read across to the different legislation which deals with toilets and the normal legal meaning of those words, which include lived gender, continues to apply.”
Now, the EHRC has changed its original guidance to remove its claim that the Supreme Court ruling means workplaces must provide single-sex toilets. The alteration is sign-posted on its original page and dated June 24.
The guidance now states: “In relation to workplaces, requirements are set out in the Workplace (Health, Safety and Welfare) Regulations 1992. These require suitable and sufficient facilities to be provided including toilets and sometimes changing facilities and showers.
“Toilets, showers and changing facilities may be mixed-sex where they are in a separate room lockable from the inside. Where changing facilities are required under the regulations, and where it is necessary for reasons of propriety, there must be separate facilities for men and women or separate use of those facilities such as separate lockable rooms.”
In a statement, the project said the EHRC had “irresponsibly failed to highlight to employers the profound change in its position”.
It went on: “Good Law Project is aware of one case, some days after the For Women Scotland case, where a woman was told by her employer that she needed to start using the men’s toilets and she went home and attempted to take her own life.
“We urge public bodies – and our media – for whom all of this often seems to be a kind of game to act responsibly and with proper care towards a vulnerable minority that feels, with justification, to be besieged.
“Given that the EHRC has now conceded a key point in our case, we are considering our next steps with our lawyers.”
An EHRC spokesperson said: “This change has been made to ensure everyone has access to the most accurate information. It should not be interpreted as a change in our fundamental position on the implications of the judgment. The Supreme Court ruled that sex in the Equality Act 2010 means biological sex.
“We are committed to providing clear, comprehensive guidance on the practical implications of this judgment. The interim update remains in place while we undertake a public consultation on our Code of Practice for services, public functions and associations."
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