A LEADING Scottish charity may be discriminating against transgender staff after a change to accessing bathrooms, legal experts have said.
Citizens Advice Scotland (CAS) staff told staff last month that the charity would be enforcing a policy of “male only” and “female only” toilets on the basis of sex assigned at birth, according to an email seen by The Ferret.
CAS’s chief executive, Derek Mitchell, reportedly said in the email, sent May 6, that the charity was bound by “legal constraints” following the landmark ruling by the UK Supreme Court in April on how sex should be interpreted under the Equality Act 2010.
The ruling stated that, under the Equality Act 2010, the definition of “woman” refers to “biological sex”, a decision gender critical campaigners claimed had brought “clarity on the law”.
However, legal experts have pointed out that the ruling on the definition of “man” and “woman” relates to the 2010 Equality Act only, while campaign groups have also raised concerns over the interpretation of the ruling.
Mitchell said the decision to enforce male and female-only bathrooms was in response to the ruling and subsequent interim “guidance” offered by the UK’s human rights regulator, the Equality and Human Rights Commission (EHRC).
CAS’s chief executive reportedly clarified that a separate single-occupancy bathroom would also be available “for any colleague”.
“As an employer, CAS is required to comply with the law, and we need to ensure our practices and policies reflect current legal standards,” Mitchell said.
“This is not an expression of any view on the High Court ruling, it is our legal obligation as an employer.”
Mitchell reportedly sent a second update two days later acknowledging the upset that had been caused due to the decision, but doubled down on claims that the charity was bound by the law to introduce changes.
The decision has left staff at CAS feeling hurt, afraid, disappointed, and concerned by Mitchell’s claim that the decision had been taken out of the charity’s hands by legal changes, The Ferret reported.
A spokesperson for CAS said they recognised “this issue touches on deeply personal experiences and we will continue to monitor and review our approach should guidance change”.
Lawyers and campaigners have said that the EHRC’s update was neither intended as formal guidance nor legally binding, and therefore gives employers options on how they proceed.
One staff member at CAS claimed neither the trade union nor the equality, diversity and inclusion committee were consulted ahead of the decision, according to The Ferret.
Another staff member told The Ferret how CAS had built its workplace culture around inclusion and dignity, and that this policy change was effectively a “slap in the face”.
“It’s almost like it’s polluted my work,” said one staff member.
“Because obviously when we consult, we’re very respectful of any kind of pronouns. So I would like to think that we would treat our colleagues the same, and that the attitude from management would be the same.”
Another said the decision to put this out “without going through proper channels to make sure that the information that he’s putting in there is correct” made them feel “less safe within the organisation”.
The Good Law Project have raised concerns since the ruling by the UK Supreme Court over how it is interpreted and whether or not it will impact other legislation that governs access to toilets and changing rooms in the workplace.
Jen Ang, a human rights lawyer and director of legal firm Lawmanity, was shown the leaked emails by The Ferret.
She said: “The Supreme Court decision does not require employers to provide only separate toilets for men and women – it only clarified the meaning of ‘sex’ for purposes of the Equality Act and in so doing, shifted our understanding of what is required if single sex, mixed sex or only sex facilities are being provided by an employer.
“Employers must consider a range of factors in deciding what toilet facilities to provide, and be prepared to justify their decisions.”
She claimed companies or charities that restricted access to some facilities on the basis of a protected characteristic like sex or gender reassignment without being able to justify the decision as a “proportionate means to a legitimate aim”, may be open to legal challenge in the future.
“This is a good reason why organisations should start early with good faith efforts to gather the information they will need to make these decisions,” Ang added.
“By engaging with staff and service users to understand their requirements – and also why clear and practical guidance and support is urgently needed from our UK equalities and human rights regulators, and from our national governments.”
Citizens Advice Scotland has been approached for comment.
