The Supreme Court has ruled. The EHRC has updated its Code of Practice. And yet, if you are an HR professional trying to navigate single-sex spaces in the workplace, you are still largely on your own.

Last month, the Government laid the EHRC’s draft updated Code of Practice for Services, Public Functions, and Organisations (the Draft Code) before Parliament. It replaces the 2011 Code and incorporates the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers, confirming that “sex”, “woman” and “man” in the Equality Act 2010 mean biological sex – and that a Gender Recognition Certificate does not change a person’s sex for the purposes of the Act.

So, what does this mean for employers?

In short: not as much as you might hope. The Draft Code covers service providers – not employers. Workplace single-sex facilities are governed separately, under separate parts of Equality Act 2010 and the Workplace (Health, Safety, and Welfare) Regulations 1992. The EHRC has said it “will update its guidance for employers in due course” but has refused to commit to any timeframe.

What should HR teams do now?

Do not wait for the EHRC’s employer guidance before acting:

  1. Draft and adopt a written policy on single-sex facilities, recording the rationale behind any decisions made.
  2. Review the first instance cases which have begun to trickle out in this area. In the most recent of these: Hutchinson and others v County Durham and Darlington NHS Foundation Trust, a policy permitting transitioning employees to use changing rooms in line with their self-declared gender identity (and failing to pause access following a complaint) amounted to harassment related to both sex and gender reassignment. It also amounted to indirect sex discrimination. The two relevant PCPs: (i) allowing access to single-sex changing rooms on the basis of self-declared gender identity; and (ii) prioritising the perceived rights of transgender employees to use facilities aligned with that identity over the rights of other employees to single-sex facilities applied on their face to both men and women. However, the tribunal found they placed women at a particular disadvantage. Women were more likely to experience distress, fear or humiliation when required to share communal changing facilities with a member of the opposite biological sex. The Trust failed to justify the PCPs, and the indirect discrimination claim succeeded.
  3. Document the balancing exercise between your legitimate aim and the impact on affected groups, including trans employees.
  4. Consider the availability of gender-neutral facilities – or the feasibility of introducing these if there are none currently in place.
  5. Assess each situation individually – blanket policies in either direction carry legal risk.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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