Some employers and HR departments in workplaces are trying to implement new rules on gender-as-biological-sex based facilities (including toilets) based on the interim guidance announced by the transphobic Equalities and Human Rights Commission. This comes after the ridiculous and unworkable Supreme Court ruling on gender as being based on ‘biological sex’. (16 April 2025 in ‘For Women Scotland v The Scottish Ministers’)
There may also be instances where organisations are looking at eligibility for office-holding and criteria for filling positions in the context of the Supreme Court ruling. Organisations such as trade unions which have reserved places on committees for women and other oppressed groups do so on the basis of self-identification. The existing practice should continue, since anything else would be intrusive and unworkable. Trans women should continue to be eligible on the same basis as cis women.
The trade union movement is discussing its response.
We have to be clear – all workers have the right to privacy, dignity, and respect at work. This does not always happen at present. For instance, not all workplace changing and washing facilities are private, accessible and with secure locks. Provision of private and safe facilities is a health and safety issue. Gender-neutral facilities should be provided and designed as single-user, enclosed, lockable spaces.
Trans and non-binary rights are trade union issues, just as much as race and sexuality are: undermining these rights weakens all workers’ protections.
All trade unions must take a clear public stand in solidarity with trans members. They should, where appropriate, also call on employers to issue statements of support for their trans staff and customers/clients/service users.
The key legal arguments are as follows:
The Equality Act 2010 is clear that any gender based facilities should also be allowed “where their provision is a proportionate means of achieving a legitimate aim”. Paragraph 13.59 of the 2011 statutory guidance for the Equality Act 2010 still says trans people should use the appropriate facilities unless there is a very strong reason for them not to.
Section 22 of the GRA 2004 protects trans people from forcibly outing themselves or being outed, which they would be by using the wrong facilities as workmates could notice and comment on it.
The right to transition includes the right to be accepted in a new gender and to confidentiality about the past.
The 1998 Human Rights Act bars public bodies from implementing law or guidance that contradicts the HHRC. Forcing trans people to change the toilets they use is likely a contravention of EHRC article 8 “the right to privacy” as it risks outing people against the law.
Any proposed changes ask for a formal Equality Impact Assessment and Risk Assessment be shared regarding the changes to any workplace facilities.
If the law changes
The danger is that the current law does change and then the above arguments are not valid. At that point we have to be clear that this is an unworkable law (unless you check people’s birth certificates or have a register of trans people and forced them to wear badges), it is also not a commensurate law as it is potentially devastating for a section of the population for no good reason.
In that situation it might be likely that the unions fall into line as they are essentially legalistic organisations that obey the law – even when the law is unjust and morally wrong. In this situation, we will have to fight to change UNISON policy
Definitions
Gender identity: a person’s deeply felt internal and individual experience of gender, which may or may not correspond to the sex assigned to them at birth
Gender expression: a person’s external gender-related behaviour and appearance, including clothing
Transgender or trans person: a person whose gender identity does not conform to the sex they were assigned at birth. These are inclusive, umbrella terms, including people who describe themselves as transsexual, cross dressing people, and people who have a more complex sense of their own gender than either 100% female or 100% male
Gender binary: the classification of sex and gender into two distinct and disconnected ‘opposite’ forms of masculine and feminine
Gender variance: gender expression that does not match society’s norms of female and male
Non-binary person: a person who does not identify as solely male or female. They may identify as both, neither or something entirely different
Gender fluid: having a gender identity which varies over time
Transsexual person: legal/medical term for someone who lives (or wishes to live) permanently in the ‘opposite’ gender to that assigned at birth
Gender dysphoria: medical term for deep-rooted and serious discomfort or distress because of a mismatch between a person’s biological sex and gender identity; overwhelming desire to live in a different gender to that assigned at birth
Gender reassignment: the process of transitioning from the gender assigned at birth to the correct gender. This may (or may not) involve medical and surgical procedures.
Legal sex: The sex recorded on your birth certificate. Currently binary in the UK. Gender Recognition Certificate: issued by the Gender Recognition Panel – signifies certain legal rights in acquired gender and allows the issuing of a replacement birth certificate.
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