Trans women can use women’s toilets, except at work, high court rules

The High Court has said transgender women are lawfully permitted to use women’s facilities, save for at work, in a decision on the Equality and Human Rights Commission’s (EHRC’s) interim code of practice.

A judgment handed down on Friday (13 February) ruled that service providers do not need to exclude trans people from using the correct facilities, including toilets and changing rooms, despite the EHRC’s claims.

High Court justice Swift ruled that the equality watchdog’s interpretation of the law is inaccurate but that single-sex spaces in workspaces must remain trans-exclusionary.

He said that its interim update, published in the wake of the Supreme Court’s judgment on FWS v Scottish Ministers, did not “exclude or prohibit” service providers from allowing trans women to use women’s facilities.

However, he stipulated that employers must restrict any single-sex spaces within a workspace ‘biological sex’ arguing that requiring trans people to use third spaces will ‘rarely’ be unlawful discrimination.

The EHRC’s interim guidance recommended service providers ban trans people from using services consistent with their lived gender and, in some cases, from spaces based on ‘biological sex’. It was scrapped in October.

Updates to its code of practice for service providers were handed to equalities minister Bridget Philipson following a heavily-criticised consultation, which gave members of the public just six weeks to provide feedback on proposed changes. If approved, the code, which has yet to be made public, would become legally-binding.

Legal experts criticised the equalities organisation after a spokesperson confirmed it had used AI to analyse the 50,000+ responses to the consultation.

High Court ruling risks outing trans people

Under the Court’s interpretation of the interim update, it could be lawful for service providers to exclude trans people from accessing spaces in line with their lived gender. However, they must prove that the exclusion meets certain conditions under the 2010 Equality Act.

Good Law Project, which brought the case against the EHRC’s code of practice last year, said elements of the judgment risk forcibly “outing” trans people at their place of work in order to use the correct facilities. It plans to appeal.

Trans rights lead Jess O’Thomson said the legal campaign organisation was “deeply concerned” about several aspects within the ruling, but celebrated the conclusion that the law had been “dangerously misrepresented”.

“Contrary to what has been widely claimed by politicians and the media, it can be entirely lawful for service providers to let trans women use the women’s toilets,” they said. “[The equalities minister] must now reject the draft code – which is wrong about the law.”

Director Jo Maugham said the “distressing judgment” brushed off evidence on the impact of being outed at work as “workplace gossip”.

“They remind me of how the pain of women was once dismissed as hysteria,” he said. “I urge the judiciary to listen harder to what trans people say about what their lives have become.”

Research published by Stonewall last year suggests that almost 40 per cent of LGBTQ+ employees in the UK still feel the need to hide their identity at work, while a third have heard discriminatory comments made at work.

Single-sex service law now ‘incoherent’, campaigners argue

Trans+ Solidarity Alliance, a UK-based non-profit, penned an open letter signed by over 650 UK businesses concerned that any form of a trans bathroom ban would be “unworkable” and pose legal and financial risks.

A spokesperson for the non-profit said this ruling only served to further complicate the already “incoherent” legal situation for trans people, employers, and service providers by failing to specify what counts as a workspace.

“What bathroom a trans person can use in a pub may now depend on whether they are there as an employee or for a drink,” they said. “We are pleased the court has confirmed that the Equality Act does not function as a bathroom ban, but outdated workplace regulations have failed to keep up with modern times and last year’s Supreme Court judgment has made them entirely unworkable.

“The High Court has clarified that trans people should not be forced to use facilities in line with their birth sex, but it is hard to see how treating us as a ‘third sex’ at work aligns with the privacy protections in the Gender Recognition Act or the Human Rights Act. We must be allowed to transition and move on with our lives with privacy, not be outed every day at work.”

In a statement handed to PinkNews, EHRC chair Dr Mary-Ann Stephenson said she welcomed the court’s conclusion that the interim update was “lawful”.

“As Britain’s equality regulator, we uphold and enforce the Equality Act. This is the second time the way we have done our duty in the wake of the Supreme Court’s ruling has been tested in the courts. Both times our actions have been found to be lawful,” she said. “It’s our job to champion everyone’s rights under the Equality Act, including those with the protected characteristics of sex, sexual orientation and gender reassignment. A shared and correct understanding of the law is essential to that endeavour.

“We note that the claimants may seek permission to appeal. We will consider any further legal proceedings carefully, in line with our statutory duties.”

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