Scottish Trans and Equality Network Misstate the Law

In a briefing paper published today, Scottish Trans, a project operating The Equality Network, has made several claims about the law which are false or misleading.

“A policy that does not allow trans people to access single-sex spaces in line with their lived sex will be unlawful if it is not a proportionate means of achieving a legitimate aim.”

This is misleading. It does not adequately distinguish between services to the public, which are covered by Schedule 3 of the Equality Act 2010, and the provision of single sex facilities in employment, which are covered by the Workplace (Health, Safety, and Welfare) Regulations 1992. There is an important legal difference between these two contexts.

In the employment context, the 1992 regulations are clear that communal sanitary, washing, or changing facilities will not be sufficient or suitable if they are not provided separately for men and women. There is a strong legal argument to be made that these facilities, because they engage the rights of women to bodily privacy, must be interpreted to mean biological men and women in all contexts. The only other legally sound interpretation of these regulations is that they permit trans people with GRCs to access facilities aligned with the sex on their GRC. There is no plausible legal argument that the 1992 Regulations must permit access on a self-ID basis. Indeed, doing so would be a clear breach of the regulations and any guidance suggesting otherwise is incomplete, misleading, or false.

In the context of public services covered by the Equality Act, the test is whether the establishment and maintenance of single-sex services is a proportionate means of achieving a legitimate aim. This is correct, but it should be stressed that this applies as much to the exclusion of “men” from a female-only service as it does to the exclusion of “trans women” and it will matter that, in law, most trans women are men for all legal purposes. Some will have the protected characteristic of gender reassignment and that will be relevant as well.

Due to the protection that trans people are also afforded by the Equality Act 2010, a blanket policy of excluding trans people from single-sex services that align with how they live their lives is likely to be unlawful under the Act.

This is simply false. This statement fails to distinguish between those with GRCs and those without GRCs, therefore relying on the protected characteristic of gender reassignment.

The requirement under the Equality Act is that any single-sex policy must be a proportionate means of achieving a legitimate aim. There is nothing within the law on proportionality analysis which suggests that blanket policies are automatically unlawful or that only a case-by-case approach will be proportionate. Indeed, the UK Supreme Court has said the exact opposite in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32:

“questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; [2009] 1 AC 287, the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38; [2015] AC 657, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; [2020] AC 869 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223.”

It is entirely within the discretion of employers or service providers to adopt general rules and policies. An assessment of these rules and policies can be done with regard to the rule or policy itself without the need to conduct a full proportionality test every time a rule or policy is applied.

Without a GRC, a trans person will likely have the protected characteristic of gender reassignment but this simply does not confer any entitlement to use single-sex facilities intended for the opposite sex. As the Inner House of the Court of Session in For Women Scotland v The Scottish Ministers at [56]:

Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex.

Sex in law is, by default, biological sex. A trans woman is legally a man and a trans man is legally a woman. Non-binary or other identities do not alter one’s sex for the purposes of the Equality Act or any of the provisions relating to single-sex services.

The statement that a blanket policy will always be unlawful is simply without legal foundation. It is false.