A Scottish charity may be discriminating against transgender staff after announcing a change to bathroom access following the recent UK Supreme Court ruling on the Equality Act, say legal experts.
In a leaked email sent to Citizens Advice Scotland (CAS) staff last month, its chief executive claimed the charity was bound by “legal constraints” following a recent Supreme Court decision 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”. Following the ruling on 16 April, ‘gender critical’ campaigners claimed the decision had brought “clarity on the law” and described the decision as “a massive relief”.
But lawyers have since pointed out the ruling on the definition of “man” and “woman” relates to the 2010 Equality Act only, and campaign groups have raised concerns over the interpretation of the ruling.
In an email on 6 May, chief executive Derek Mitchell said CAS would be enforcing a policy of “male only” and “female only” toilets on the basis of sex assigned at birth. This, he said, was in response to the ruling and subsequent interim “guidance” offered by the Equality and Human Rights Commission (EHRC), which is the UK’s human rights regulator. A separate, single-occupancy WC would be available “for any colleague”, he clarified.
Mitchell also wrote: “As an employer, CAS is required to comply with the law, and we need to ensure our practices and policies reflect current legal standards. This is not an expression of any view on the High Court ruling, it is our legal obligation as an employer.” Two days later Mitchell sent a second update that acknowledged the upset that had been caused, but doubled down on claims that the charity was bound by the law to introduce changes.
Staff told The Ferret they were left feeling hurt, afraid and disappointed by the decision and concerned by the claim this decision had been taken out of the charity’s hands by legal changes.
It’s almost like it’s polluted my work.
Staff member, Citizens Advice Scotland
Lawyers and campaigners told The Ferret that the EHRC update was neither intended as formal guidance nor legally binding, therefore giving employers options on how they proceed. They also warned that caution must be taken to avoid legal challenges.
When approached by The Ferret, Citizens Advice Scotland said it recognised “this issue touches on deeply personal experiences and we will continue to monitor and review our approach should guidance change”.
Staff at CAS, who spoke on condition of anonymity, claimed neither the trade union or the equality, diversity and inclusion committee were consulted ahead of the announcement.
One worker claimed they no longer felt able to come out as trans at work, saying that “this is not a safe place to be”. Others described 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”.
Since the ruling, legal professionals and campaigning organisations including the Good Law Project, have raised concerns over how it is the 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. 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 who 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,” she 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.”
The EHRC and Bridget Phillipson, minister for women and equalities, have both claimed that the Supreme Court ruling has brought clarity to the law. But there has been uncertainty from charities and other organisations about what policy alterations, if any, they might have to make after the ruling, with some claiming they are forced to make changes, and others – such as domestic violence charity Refuge – saying the ruling will have no impact on how they provide services.
A six week consultation period has now opened on the future code of practice in order for the EHRC to provide appropriate guidance before submitting it for parliamentary approval.
Organisations should follow the law – not guidance which we believe seriously misstates the law, and is leading employers and service providers into error.
Jess O’Thomson, Good Law Project
“Until then,” warned Jen Ang, “it remains unclear what the EHRC guidance will require and organisations should be wary of changing their established policies, without a full understanding of the significance of the Supreme Court decision and what it means, specifically, for their organisation, as employers and service providers.
She added: “It is not possible, or wise, to seek to immediately apply the Supreme Court judgment as requiring a one-size-fits all solution to the question of what type of toilets to provide, for whom.”
Following the release of EHRC’s interim update, the Good Law Project has launched legal proceedings against the human rights regulator, as well as the minister for women and equalities, accusing them of misrepresenting the law.
Good Law Project’s community outreach lead Jess O’Thomson claimed: “Organisations are not obliged to follow the EHRC ‘interim update’, and it is not legally binding. Organisations should follow the law – not guidance which we believe seriously misstates the law, and is leading employers and service providers into error.
They added: “We are very concerned about decisions being taken in the wake of the Supreme Court judgment which we think are getting the law wrong. This is why we have started legal proceedings against the EHRC and Bridget Phillipson, whose serious misstatements of the law have already led employers and service providers into error. Such errors are severely impacting the ability of trans people to live their lives with dignity.”
Human rights advocacy group Liberty has also launched legal action against the EHRC, alleging it has failed to carry out a fair consultation on changes to their code of practice. Liberty alleges that UK courts have established that consultation periods should be at least 12 weeks minimum. The EHRC initially proposed a two week consultation period, later revising it up to six weeks.
Derek Mitchell, chief executive of Citizens Advice Scotland, said: “Respecting the Supreme Court judgement, the interim EHRC guidance , and our shared values of inclusion, fairness and dignity is fundamental. We recognise this issue touches on deeply personal experiences and we will continue to monitor and review our approach should guidance change.”
A spokesperson for the Equality and Human Rights Commission added: “As we have said publicly since 16 April, the law – as set out in the Supreme Court’s judgment – is effective immediately. Those with duties under the Equality Act 2010 should be following it and looking at what changes, if any, need to be made to their policies and practices. Where necessary, duty-bearers should take appropriate specialist legal advice.”
An Office of the Scottish Charity Regulator spokesperson said: “In the interim, if charities are unsure how the ruling affects them, they may wish to refer to the interim update from the EHRC and seek legal advice where necessary to ensure their policies remain lawful, proportionate, and aligned with their charitable purposes.”
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Wow, there must be thousands of businesses and charities considering this clarity of The Equality Law after several years of drift. And The Ferret decide to hit on Citizens Advice! With quotes from a few individual staff? Do you realise the incredible work that CAB do, the types of buildings that they continue to work from, the grasping for funding whilst helping so many people who are on their knees with poverty or in debt? Maybe Ferret could write a decent article about that, rather than this personal snipe. Shameful.
Yes, they did something horribly discriminatory, they should be reported on. They brought it on themselves.
“Staff told The Ferret they were left feeling hurt, afraid and disappointed”
Exactly how women have been feeling when being bullied and threatened with throat-punching, rape and decapitation by trans activists. Get over it, guys, the law is clear. Start using your own toilets.
Trans women aren’t a widespread threat to cis women. Cis men are though! I’m so sorry that o.5% of the population exist rent free in your head whereas 50% of the population are an actual potential threat to you.
Very funny mods why was my comment not printed. Went against the new religion I take it isn’t allowed.
Trans women are literally male they are part of the 50% of people that Les here claims are a “potential threat” but because they have claimed lady brains they “aren’t a widespread threat”… I’m at least happy that someone on the TRA side is recognising that males in female spaces do pose a threat because the regular argument is that they magically don’t.
Don’t speak for women, S Henderson.
And if we’re going to talk threats, ‘gender critical’ activists have lobbed so many vicious, misogynistic, hateful insults at me, and other women, simply for disagreeing with their hateful transphobia.
Not to mention the GC activists (Raymond, Minshill, Joyce) openly calling for trans people to be, “mandated off the face of the earth” / “crucified” / “a problem… that should be reduced.”