On 25 April, the EHRC issued an interim update on the practical implications and main consequences of the judgment. This provides that in workplaces and services that are open to the public, trans women (biological men) should not be permitted to use women's facilities, and trans men (biological women) should not be permitted to use men's facilities. However, the update also states that in some circumstances the law allows trans women not to be permitted to use men's facilities and trans men not to be permitted to use women's facilities. This covers the situation referred to in the Supreme Court judgment, where it may be lawful to exclude a trans man (who is a biological woman) from women's services because the gender reassignment process has given them a masculine appearance such that reasonable objection might be taken to their presence and their exclusion on this basis can be objectively justified. Where facilities are available to both men and women, the update provides that trans people should not be left in a position where there are no facilities to use. Where possible, mixed sex toilets, washing or changing facilities, in addition to sufficient single-sex facilities, should be provided.
Schools
Similar rules apply to pupils identifying as transgender, with trans girls not to be permitted to use the girls' toilets or changing facilities and trans boys not to be permitted to use the boys' toilets and changing facilities. Schools may be required to provide suitable alternative facilities.
Associations
The update confirms associations of 25 or more people can be limited to men or women only. They can also be limited to people who each have two protected characteristics such as gay men or lesbian women. The update states that these groups should not admit transgender people of the opposite biological sex.
What next?
The EHRC has confirmed that they will address the issue of single-sex competitive sport in due course.
In the meantime, the EHRC draft Code of Practice is being reviewed, and a public consultation is to begin in mid-May. This is to identify how the practical implications of the Supreme Court judgment can be best reflected in the updated guidance. The aim is to provide the UK Government with an updated Code of Practice for ministerial approval by the end of June.
While the updated Code of Practice is awaited, employers may want to consider risk assessing any areas of their business that may be impacted by the judgment and taking legal advice in relation to specific circumstances. Some workers and employees may also be concerned about how the judgment affects them within the workplace and employers should be alert to any issues they might raise and consider what support may be needed.
For more information on the judgment see our previous article here.
