New EHRC guidance on single-sex spaces

The updated Code of Practice for Services, Public Functions, and Organisations (the Draft Code) incorporates the Supreme Court’s judgment in For Women Scotland Ltd v The Scottish Ministers.  That case confirmed that “sex”, “woman” and “man” in the Equality Act 2010 mean biological sex.  A Gender Recognition Certificate does not change a person’s sex for the purposes of the Act.

What does this mean for employers?

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 Equality and Human Rights Commission (EHRC) has said it “will update its guidance for employers in due course” but no timeframe is given. 

Hutchinson and others v County Durham and Darlington NHS Foundation Trust

In Hutchinson and ors v County Durham and Darlington NHS Foundation Trust, the tribunal decided that 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 Provision, Criteria or Practices (PCPs):

• 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.

4 things HR teams can do now:

Don’t wait for the EHRC’s employer guidance before acting:

1. Draft and adopt a written policy on single-sex facilities, recording the reasoning behind any decisions made.
2. Document the balancing exercise between your legitimate aim and the impact on all affected groups.
3. Consider whether gender-neutral facilities are available – or is it feasible to introduce these if not?
4. Always assess each situation individually – blanket policies in either direction carry legal consequences.

Further reading

• EHRC Code of Practice – EHRC
• NHS trust liable for discrimination – Hunter Law
• Not harassment if you participate in the banter – Hunter Law
• Discrimination compensation when job hunting – Hunter Law

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