The UK’s Supreme Court has ruled that “man”, “woman” and “sex” in the Equality Act 2010 refer to sex, not self-ID or paperwork (gender-recognition certificates). This agreed with our legal interpretation. We have published new guidance and are in the process of updating our publications to reflect the judgment. We are also working to provide answers to the questions we're hearing from supporters and the media. We will publish these as soon as possible.

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Time for the Health and Safety Executive to step up

It’s scandalous that women such as Sandie Peggie and Eleanor Frances have had to put everything on the line because regulators have failed to uphold laws that have been in place for decades. – Maya Forstater

The Sandie Peggie case has shone a spotlight on workplace health and safety regulations that require employers to provide adequate (generally separate) facilities for men and women at work for washing, changing and using the toilet. 

Sex Matters has written to the regulator asking it to step up and do its job. As we told the Daily Express:

“It’s scandalous that women such as Sandie Peggie and Eleanor Frances have had to put everything on the line because regulators have failed to uphold laws that have been in place for decades.

“Not only have these legal challenges come at great personal cost, but fighting them has been an inexcusable waste of scarce public funds. 

“It is well past time for the Health and Safety Executive to act. It is responsible by statute for enforcing the 1992 regulations that are meant to guarantee safe workplaces.”

The 1992 Workplace Regulations make clear that to be suitable, facilities for washing, changing and using the toilet should be separate sex, apart from where they are in single-user fully enclosed rooms. 

Toilets and changing rooms

Showers

Employment Tribunals have no jurisdiction to determine complaints about breaches of the 1992 Regulations (although if policies result in direct or indirect discrimination or harassment, this may provide the basis for an employment claim like the one Peggie has brought). 

The main means of enforcement is through the Health and Safety Executive (“HSE”) and local authorities, both of which can impose sanctions on employers.

But we have heard from people who have contacted the HSE about their workplace facilities that the answers they received answers that were confused and unhelpful. 

Eleanor Frances complained to the HSE about civil-service policies that permit men to use women’s facilities. It responded to her that “having gender neutral toilets in the workplace does not constitute a breach under the Health & Safety at Work Act 1974”. She wrote back clarifying that the issue she was concerned with was not “gender neutral” toilets but facilities labelled as separate-sex being operated as mixed-sex based on gender identity. The HSE said this did not “present a serious risk of harm”. The regulator took no action, and when Frances complained at work she ended up facing a hostile environment. She later brought a constructive dismissal claim that was settled for six figures.

HSE told the express:

“Our guidance makes it clear that suitable facilities must be provided in workplaces.”

Sex Matters has written to Sarah Albon, Chief Executive of the HSE, to say that the lack of explicit clear guidance from the workplace safety regulator, and the dismissal of complaints such as those of Frances, have played a part in women around the country having to share changing rooms, toilets and shower rooms with male colleagues, as well as being bullied, called “transphobic” and placed under investigation if they refuse or complain. 

We have called on the regulator to:

  • set out its understanding of the 1992 regulations and whether employers are in breach if they operate access policies based on “gender identity”
  • commit to publishing clear guidance for employers and local authorities 
  • work with the EHRC to produce clear simple “back of a postcard” guidance explaining the requirement to provide separate-sex facilities and how that requirement interacts with the Equality Act 2010, making clear that setting and enforcing the rules needed to provide separate-sex facilities does not constitute unlawful discrimination under the Equality Act 
  • write to NHS Scotland and the Scottish Cabinet Minister for Health concerning the issues raised by NHS Scotland policy
  • write to the DCMS and DSIT Permanent Secretaries, Susannah Storey CB and Sarah Munby concerning the issues raised by Frances and the policy she complained about, which is under revision. 

Read our letter to the HSE:

Filed under Updates   Workplaces