Do workplaces need to provide single biological sex toilets?

Yes: it is a legal requirement to provide sufficient, separate single biological sex toilets (or separate room toilets) in the workplace.

The Supreme Court, in For Woman Scotland (“FWS”) has ruled that - for the purposes of the Equality Act 2010 (the “Act”) - sex means biological sex (as opposed to sex certificated for the purposes of the Gender Recognition Act 2004 (“GRA”)). FWS does not explicitly address the issue of workplace toilets, and its exercise in statutory interpretation regarding the definition of sex is limited to the Act.

In my work as a workplace lawyer, I try to be as clear and practical in my advice as possible, as well as realistic about competing risks. In my work as an academic lawyer, I try to be as forensic and viewpoint-neutral as I possibly can. The fallout which has resulted from the Supreme Court judgment in FWS - similar to my work on academic freedom and contentious philosophical beliefs - has given an opportunity for me to attempt to combine both.

For workplaces perhaps the biggest question in light of FWS concerns toilets, a topic which received no direct, material treatment by the Supreme Court. That lacuna (not an omission; toilets weren’t the issue in that case) has given rise to legal commentary which suggests that there is real doubt over whether single biological sex toilets (or separate rooms) must be provided in the workplace and/or whether a risk of claims arises from those with the protected characteristic of gender reassignment if they are provided (and enforced). As I set out below, I don’t think either is the case.

My intention in writing this piece is to do my best to forensically analyse the law and clear some clear practical guidance in a general way. I’m sure others will disagree with my analysis (as often happens with my academic work) and that is welcomed. Obviously, it shouldn’t be relied on as legal advice for any given set of facts - tailored legal advice must always be sought.

Others (link) have - correctly- argued that a failure to provide single biological sex toilets could lead to successful workplace claims of discrimination or harassment under the Act. This would mean that, absent anything else, it would be a high risk for a workplace not to provide single biological sex toilets. They also correctly note that the Workplace (Health, Safety and Welfare) Regulations 1992 (the “Health & Safety Regulations”) require separate toilets be provided for men and women unless single lockable rooms can be provided (regulation 20).

I have seen it contended, however, that - notwithstanding FWS - neither the Health & Safety Regulations nor any other law explicitly and directly mandates that single biological sex toilets are provided in the workplace. The argument is as follows: the Health & Safety Regulations do not define men or women; FWS addresses only the definition of sex in the Act; therefore, there is reasonable scope for doubt that men and women in the Health & Safety Regulations may refer to certificated sex and not biological sex (and so further litigation is needed to resolve it).

In particular, this seems to be a basis for criticism of the update note of the Equality and Human Rights Commission. This says that workplaces must provide sufficient toilets based on biological sex (per the Health & Safety Regulations, although that is unsaid in the update), and others have argued that this is overreach and a misstatement of the law.

A particularly cautious employer may find attraction in the line of argumentation outlined above about definitions in the Health & Safety Regulations because the premises are correct in a strict sense. However, my view is that the conclusion is ultimately a very dangerous one on which to rely. The reason (at least, my reason, and I’m sure others can think of others) for that view lies in a careful reading of the approach to statutory interpretation adopted by the Supreme Court in FWS. If one were to imagine they were undertaking the same exercise, and adopting the same reasoning, to the Health & Safety Regulations as they did for the Act, I think it is likely they would conclude that the Health & Safety Regulations meant biological sex as a matter of statutory interpretation.

The crux of the question which the Court addressed in relation to the Act was whether section 9(1) of the GRA, which provides that a person’s sex becomes the acquired sex for all purposes, was disapplied by the Act pursuant to the carve out to the general rule in section 9(3) GRA. The Court held that the Act did fall within section 9(3) and so sex was biological sex. In so holding, it gave general commentary on the meaning of the crucial section 9(3) wording.

It held that a piece of law can fall into the exception even if:

• it doesn’t have express wording to say that it does (the Act does not have such wording);
• it was enacted before the GRA (as in the case of the Health & Safety Regulations); and
• it doesn’t reach the relatively high threshold of necessary implication.

Instead, what one must assess is “the wording, context and policy of the statute in question. It is likely to be unhelpful for the coherence of the law to impose a stringent test for the application of section 9(3)” [108]. The Court later says ([156]) that section 9(3) applies where “the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1)”.

First, let us consider the context of the Health & Safety Regulations, enacted as they were in 1992. The Court noted ([51]) that there was “no doubt” that man and woman meant biological sex in 1975 when the Sex Discrimination Act was introduced, and that neither the 1999 Gender Reassignment regulations nor the Act changed that starting point. Considering that context, and the fact that the Health & Safety Regulations were directly implementing a 1989 EU Directive, there is no particular reason to assume that the drafters of the Health & Safety Regulations had any different starting point than that men and women referred to biological sex.

The Employment Appeal Tribunal has stated as much:

“The terms “men” and “women” were not defined in either the Directive or the Regulations but, as it seems to us, in 1989 and 1992 the references would be to those at law or believed by the employer to be male and female respectively. Moreover, it seems to us inherently improbable that the terms “men” and “women” should then be referring to the gender a person might choose for himself or herself as that interpretation would require contemplation of the shower rooms, similarly provided to be separate, nonetheless possibly having amongst their users, in the women's facilities, persons still wholly anatomically male and, in the men's, persons surgically adapted as far as possible to resemble females. Further, if the Directive was contemplating “men” or “women” as including persons asserting a gender other than congruent with their sex at law or that sex believed by the employer to be the appropriate sex at law, one could reasonably have expected provision to be made to exclude, for example, temporary masquerades, by referring to the steps taken to adopt the discongruent gender and as to its intended duration” (Croft v Consignia Public Limited Company at [55]).

Second, we can consider the purpose of the Health & Safety Regulations. Here, their purpose can be divined from their very name and the Directive which they were implementing, namely health and safety of workers. At various points in FWS, the Court recognised that females, as a biological sex class, had a health and safety interest in being separated from males as a biological sex class (see [185], [186], [213], [214], and [232] – [236])

For example, it said at [213]:

“A certificated sex interpretation would make paragraph 2(2)(b) unworkable: it would be impossible to identify “risks specifically affecting women” because the same health or safety risks would also naturally and inevitably be risks that affect trans men with a GRC who would be legally male on this interpretation (albeit biologically female) and therefore liable to be affected by the same risks”.

In other words, in order to properly identify and ameliorate risks which accrue to females as a biological sex class and satisfy the purpose of the Health & Safety Regulations in ensuring their health and safety, then – adopting the logic of the Court in FWS – we can conclude that women and men in the Health & Safety Regulations must have their biological meanings, lest the Health & Safety Regulations become incoherent or unworkable vis-à-vis their statutory purpose.

We can also look to other provisions of the Health & Safety Regulations for guidance on toilets (the Court telling us that words in a piece of law must have a consistent meaning throughout it, unless there is an extremely good reasons to think otherwise). Regulation 24 states that separate changing facilities (or separate use) should be provided for men and women where necessary for reasons of propriety.

In FWS, the Court discusses the provision of separate and single sex services, references the aims of women’s safety, autonomy, privacy and dignity, and finds that the only way that these aims become meaningful and coherent is to adopt a biological definition of sex. There is no compelling reason to think that the same would not be true of a similar interpretative exercise undertaken with respect to the Health & Safety Regulations and their requirements regarding propriety.

In terms of potential risks for employers in following the Health & Safety Regulations, I have seen it suggested that persons with the protected characteristic of gender reassignment may nonetheless bring indirect discrimination or harassment claims against their employer (the difficulty of direct discrimination claims given the comparator being someone of the same biological sex is generally acknowledged, it would seem).

On the former, Akua Reindorf KC has pointed out that complying with the Health & Safety Regulations will easily satisfy the statutory defence of proportionate means of achieving a legitimate aim. On the latter, a similar logic applies. Under section 26(4)(b) and (c) of the Act, a tribunal must consider all the circumstances of the case and whether it is reasonable for the proscribed effect to be found to be established, i.e. there is an objective test to be satisfied (Pemberton v Inwood).

Pemberton is also authority for the proposition that acts of Parliament should not be undermined when considering section 26(4)(b)and (c) and that other statutory provisions are relevant surrounding circumstances, even if not directly applicable. In that case, a priest’s claim that he had been subjected to discrimination and harassment by having his permission to officiate revoked on the grounds he had entered into a same-sex marriage was rejected. The key point here is that there was a defence under Sch.9, para.2 to the Act that allowed discriminatory requirements to comply with religious doctrine. Regarding the harassment claim, the Court of Appeal was clear that the defence did not apply. However, the existence of the defence with respect to the claim of discrimination was relevant to the question of reasonableness and was a relevant surrounding circumstance of the case.

At[75], the court notes that "unless there are ‘aggravating features’, it cannot be reasonable for unwanted conduct which otherwise falls within the defences in Schedule 9 paragraph 2, to have had the effect proscribed in section 26(1)(b). To conclude otherwise would make a nonsense of providing the defence in Schedule 9 in the first place" (emphasis added). It stands to reason that a directly applicable statutory duty would at least have the same effect as a statutory defence which was not directly applicable, as the reasoning here is that Parliament has effectively given a kind of statutory approval to the conduct in question and so a proper interpretation of section 26(4) requires section26 to yield in the presence of a competing statutory duty. In other words, if other statutes are in play, then an analysis pursuant to section 26(4) must take them into account as relevant circumstances and, absent aggravating features, the other statutory obligation will generally take precedence.

It therefore follows that, if an employer were complying with the Health & Safety Regulations then, absent anything more, the risk of indirect discrimination or harassment claims are in fact low.

In conclusion, while FWS did not explicitly address the Health & Safety 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 Health & Safety 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 Health & Safety Regulations differs from the Act, i.e. it is biological for both.

More generally, if it were to be found that the Health & Safety Regulations did mean certificated sex, then this would create significant confusion and inconsistency, and it seems unlikely that – absent very clear wording in the Health & Safety Regulations or other law about certificated sex (which is not there currently) – they would risk the fallout from such an interpretation. As the Court in FWS put it: “Indeed, it would offend against the principle of legal certainty and the need for a meaning which is constant and predictable, especially in the context of an Act with the purposes we have identified, and which has such practical everyday consequences for so many individuals and organisations in society” ([175]). The Court was talking there about consistency intra the Act, but it is an observation with equal force as a public policy desideratum inter leges.

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