“So God created mankind in his own image, in the image of God he created them; male and female he created them.” Gen 1:26 (NIVUK)
The recent Supreme Court decision in For Women Scotland Ltd v The Scottish Ministers has received much coverage. We consider that the decision and its effect is clear, although there has been some muddled reporting of the decision and its likely impact.
We have set out below key aspects of the decision and its consequences for churches and Christian organisations.
What was the case about?
The Supreme Court was asked to reconcile an ambiguity between the Equality Act 2010 and the Gender Recognition Act 2004 – whether the reference to “sex” within the Equality Act 2010 means biological sex only or does it include those with a gender recognition certificate (whose sex is changed for certain legal purposes).
What was the decision?
The Court held that the reference to “sex” in the Equality Act means biological sex only. Therefore a woman does not include a “trans-woman” (who is a biological male) even if he has a gender recognition certificate. Similarly, a man does not include a “trans-man” (someone who is biologically female ) even if she have a gender recognition certificate.
Single-sex service providers
Therefore, where providing a single sex service (for example to women only) is lawfully justified, it would not be unlawful to deny access to that service to a “trans-woman” (that is a biological male). The same would apply to a men only service and a “trans-man” (biological female).
It would be unlawful to deny access to that women only service to a “trans-man” (that is a biological female) if the reason for denying access relates to the protected characteristic of gender reassignment (unless one of the limited exceptions applies). The same would apply to a men only service and a “trans-woman” (biological male).
Allowing “trans-women” access to a women only service means it is not a single-sex service. It may also be unlawful discrimination (against actual and potential female users of the service). The same applies when allowing “trans-men” access to a men only service.
Mixed-sex service providers
Unless one of the limited exceptions applies, it would be unlawful to deny trans-men or trans-women access to a service that is available to men and women.
Staff Toilets
Under regulations made under the Health and Safety at Work etc Act 1974, employers must provide staff with dedicated single sex toilet facilities for men and women. As an alternative, they can provide unisex facilities provided each toilet is in a separate room (ie not a cubicle with a common washing area) that is lockable from the inside.
Therefore, when it comes to single sex toilets for staff, allowing a “trans-man” or “trans-woman” to use a single sex toilet that does not matches their biological sex means that it is not a single sex toilet and so there may be a breach of the Health and Safety at Work etc Act. It may also be unlawful discrimination (against actual and potential users of the single-sex toilet).
It is obviously desirable to provide facilities that every individual feels able to use. In this regard, there is no problem with having unisex toilets; however, unless these unisex toilets meet the requirement to be in a separate room that is lockable from the inside, they must be in addition to the requirement to have sufficient single sex toilets.
Showers, changing rooms and other spaces
There is no legislation requiring employers to provide male and female only showers or changing rooms (or other spaces – other than certain requirements relating to breastfeeding).
When providing this space to one sex only (for example a women only changing room), allowing a biological male access because they are a “trans-woman” would stop it being single sex – and would mean it is no longer lawfully justifiable to deny other men similar access purely on the basis of their biological sex.
