Trans people facing ‘workers’ rights crisis’ as court rules employers can ban trans women from using female toilets

Trans people are facing a “workers’ rights crisis”, campaigners have warned, after the High Court ruled that employers can legally ban transgender women from using female toilets and changing rooms in the workplace.

The Good Law Project and three individuals brought the legal challenge against Britain’s rights watchdog over interim “guidance” issued in the wake of the Supreme Court’s ruling on the legal definition of a woman. The campaign group have since said they will challenge the ruling.

The latest ruling means that workplaces must provide single sex bathrooms on the basis of biological sex. Employers will be unable to allow, for example, trans women to use single-sex women’s toilets.

However, this does not mean that trans people will be required to use facilities corresponding with the sex they were assigned at birth. Instead, employers may be required to provide gender neutral facilities in addition to single sex bathrooms.

The Equality and Human Rights Commission (EHRC)’s guidance was published last April but was removed from the watchdog’s website in October.

It stated that trans women “should not be permitted to use the women’s facilities” in workplaces or public-facing services such as shops and hospitals, with the same applying for trans men using men’s toilets.

But Friday’s judgment also ruled that service providers are not required to exclude trans people from using toilet provisions which are in line with their lived gender, with a High Court judge saying service providers should be “guided by common sense and benevolence” rather than be “blinkered by unyielding ideologies” when providing toilet facilities.

Mr Justice Swift said on Friday that it was “fanciful” to suggest that the law seeks to regulate “every possibility that can arise” when providing facilities.

He also said that the notion that a person or employer was required to “police” the use of toilets “reveals the application of a ‘logic’ so strict that it is divorced from reality and from any sensible model of human behaviour”.

It has been reported that the EHRC’s draft code of practice – updated in the wake of the Supreme Court edict on biological sex in April and shared with the government last year – will force service providers to ban trans women from spaces such as women’s toilets and changing rooms.

But the latest ruling means that equalities minister Bridget Phillipson will likely ask the EHRC to redraft this guidance.

Jess O’Thomson, GLP’s trans rights lead, argued the judgement “makes it absolutely clear the law has 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. The minister must now reject the draft Code – which is wrong about the law”, they said.

While this section of the High Court judgment can be seen as a victory for trans people, there are also concerns that it leaves deep inconsistencies in the law between the workplace and outside it.

“The legal situation for trans people, employers and service providers is now completely incoherent. What bathroom a trans person can use in a pub may now depend whether they are there as an employee or for a drink”, a spokesperson for the Trans Solidarity Alliance 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 organisation warned that the implications of the judgement for workplaces means trans people are at risk of being outed at work, pointing out that they “may have been using gendered facilities without issue for years”.

“And it is unclear how trans people without access to gender neutral facilities will be able to do their jobs,” they added.

“This is a worker’s rights crisis for the trans community, and one which will cause issues for employers across the country.

“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.”

But Maya Forstater, CEO of gender critical campaign group Sex Matters, which intervened in the case, said: “This judgment vindicates the EHRC’s swift action in publishing practical guidance in April last year, just a few weeks after the Supreme Court judgment.

“The law is clear. There was never any excuse for the government, public bodies, regulators, charities or businesses to delay in implementing the Supreme Court judgment.

“We are proud to have provided witness evidence to the High Court to ensure that when the judge was thinking about the black letter of the law, he was also reminded of the underlying reality of what words like privacy, decency and propriety mean in the real world for women and girls using showers, changing rooms and toilets.”

In the ruling on Friday, Mr Justice Swift ruled that the GLP “does not have standing to bring the challenge in this case”, and also dismissed the individuals’ claims.

Following the ruling, the GLP said that it will seek to challenge the judgment at the Court of Appeal.

Jo Maugham, director and founder of the body, said that the ruling was “very distressing” and described aspects of it as “deeply troubling”.

“This is a very distressing judgment for me as a lawyer, as it will be for the trans community. Aspects of it – that wave away as ‘workplace gossip’ evidence of what it means to be outed in an increasingly transphobic and violent society – are deeply troubling”, he said.

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