Recently, the Office for National Statistics (ONS) initiated a new policy allowing women to face disciplinary repercussions if they object to transgender colleagues using single-sex facilities, highlights Amelia Brand.

The leaked cache of HR policies, internal communications, and intranet posts has reignited debate over transgender rights in the workplace.

Are workplaces becoming ‘woke-places’? And, how should employers navigate trans rights within the workplace?

What happened at the ONS?

The leaked documents include resources on “Gender Identity and Transitioning at Work,” outlining procedures for supporting transitioning employees. Notably, a manager’s checklist suggests that objections to sharing facilities with transitioning colleagues should be addressed through communication and education. However, persistent objections could lead to grievance or disciplinary procedures.

Under the ONS’ policy introduced in 2018, transitioning employees have the autonomy to decide when to use single-sex facilities aligned with their acquired gender. Also, the policy emphasises that transitioning employees should not be compelled to use disabled facilities.

Of particular concern is the requirement for the destruction of all information regarding an employee’s previous gender following their transition, which could certainly impact managerial oversight and accountability.

Speaking to HRreview, Fiona McAnena, Director of Campaigns, at Sex Matters, comments on this, and says that it is “perfectly reasonable for a woman not to want to encounter a male colleague in the women’s toilets or changing rooms, yet this is treated by the ONS as if it is unreasonable, requiring education or even a disciplinary response.”

The legal side

The provision of single-sex facilities is a sensitive issue, particularly concerning transgender rights. Under the Equality Act 2010, discrimination can occur if an employee is prevented from using facilities allocated to their gender identity. The Workplace (Health, Safety, and Welfare) Regulations 1992 mandate separate male and female toilet facilities, allowing exceptions only when the facilities are in lockable, separate rooms.

This is where the gender recognition certificate (GRC) becomes important.  This document is necessary in order for an individual to have their gender legally recognised in the UK.  Under the Equality Act 2010, ‘sex’ is understood as binary, being a man or a woman. For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate. A trans person can change their legal sex by obtaining a GRC. A trans person who does not have a GRC retains the sex recorded on their birth certificate for the purposes of the Act.

The impact on individuals

In the landmark case of Earl Shilton Town Council v Miller, a significant issue of workplace discrimination was brought to light, focusing on the provision of toilet facilities. The female argued that the shared nature of the building’s restrooms prevented her from accessing the women’s toilet at times. Consequently, she was compelled to use the men’s toilet, which included a urinal she had to pass to reach the single cubicle. This setup, she claimed, amounted to direct sex discrimination. The Employment Appeal Tribunal (EAT) upheld her complaint, agreeing that the arrangements subjected her to a detriment and treated her less favourably than her male counterparts. The EAT noted that no male employee faced similar restrictions. This case clearly underscores the importance of employers ensuring equitable and appropriate toilet facilities to avoid claims of discrimination.

Non-statutory guidance over the past decade has varied, initially suggesting that employees should use facilities corresponding to their acquired gender. More recent guidelines advocate for gender-neutral facilities. Such facilities, if lockable and private, could have addressed many of the issues raised in Miller.

The Path Forward

Speaking to HRreview, Fiona McAnena upholds that solving the issue is not complicated because “most employees prefer single-sex provision.” She explained that a few will prefer a facility that does not correspond to their sex. The second group can be accommodated, if practicable, in unisex facilities provided in addition to the conventional separate provision for men and women. “This reduces the potential for conflict between employees: if everyone understands which facilities are female-only, which are male-only and which are for either sex then everyone’s privacy and dignity is protected.”

Psychological well-being is a crucial consideration, as barring employees from using facilities aligned with their gender identity can cause significant harm. Employers should engage in open, compassionate dialogue with their staff to navigate these complex issues, ensuring that workplace policies reflect a commitment to equality and respect for all individuals.

By addressing these concerns proactively and thoughtfully, employers can prevent conflicts and create a supportive environment for everyone in the workplace.

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Amelia Brand is the Editor of HRreview.

 

 

 

 

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Amelia Brand is the Editor for HRreview, and host of the HR in Review podcast series. With a Master’s degree in Legal and Political Theory, her particular interests within HR include employment law, DE&I, and wellbeing within the workplace. Prior to working with HRreview, Amelia was Sub-Editor of a magazine, and Editor of the Environmental Justice Project at University College London, writing and overseeing articles into UCL’s weekly newsletter. Her previous academic work has focused on philosophy, politics and law, with a special focus on how artificial intelligence will feature in the future.