The Supreme Court’s decision in the For Women Scotland case
The Supreme Court ruling that people are the sex they were assigned at birth for the purposes of the Equalities Act, and subsequent interim update issued by the Equalities & Human Rights Commission, has had a devastating impact on trans women and men, amongst whom we count many members.
We share the view of the Scottish Trades Union Congress when, at a recent conference, it stated:
We believe that solidarity with trans and non-binary people must be a matter of principle for the trade union movement, just as we oppose racism, sexism and ableism. Trans inclusion is a workplace issue. Our solidarity cannot depend on the law or how courts interpret it; there can be unjust laws and legal decisions.
The law must evolve to reflect understandings of gender and ensure explicit protection for trans, non-binary, gender diverse, and intersex people. Equality for trans and gender-diverse people is a trade union, workers’, and human rights issue.
Understanding the situation
We’d recommend this FAQ provided by the Good Law Project.
Unite’s position
Unite published this statement after the Supreme Court ruling. Current policy, decided at the 2018 conference, says:
Unite believes there is a lot of work to be done, across both workplaces and Government, to recognise additional gender identities. Unite believes that any worker has the right to determine their gender identity without unnecessary medicalisation, and supports the review of the process of applying for gender recognition process / certificate. All Unite members who identify as women and meet the rule 6 qualifications of being a union work place representative in employment are welcome to participate in the Women’s structure of Unite
Policy Conference
Our Policy Conference is taking place between 7-11 July this year. We hope that motions will be passed which affirm the union’s position that trans women are women and trans men are men, and to emphatically oppose this state-sponsored attack. No to Gender Policing!
Take action – take part in the EHRC consultation
The Equalities & Human Rights Commission have published their draft Code of Practice and invited groups and individuals to participate in a consultation which runs until 30 June. We strongly recommend that members submit a response. We have a set of suggested answers prepared by a barrister that people can use. TransActual have also published a good explainer.
What to do if your employer is making changes to company policy
We know that some employers – though not, as far as we are aware, in our sector – are already proposing changes, for example the Financial Conduct Authority, to who should use what toilet. We’d make the following points:
- The EHRC interim guidance is incoherent, not likely to be valid and is being challenged. Changing bathroom policy at this time puts an employer in contravention of pre-existing legal convention.
- The Supreme Court ruling does not say anything about toilets — it is a contested matter.
- On single sex spaces, the ruling does not mandate (but only permits) trans exclusion.
- The Supreme Court ruling only applies to the Equalities Act, but does not apply to many other laws governing the rights of trans people. Excluding trans people from toilets is likely to result in discrimination against people on the basis of gender reassignment, and validate harassment in the workplace, risking a large number of legal claims against the company:
- Any entity trying to ban trans people from using the appropriate facilities is breaching the law. Despite the SC judgement and EHRC interim update, no laws have changed.
- Section 22 of the Gender Recognition Act 2004 protects trans people from forcibly outing themselves or being outed, which they would be if they used the wrong facilities. Trans people are not obliged to disclose they are trans to anyone and their Gender Recognition Certificate, if they have one, is confidential. The organisation opens itself up to legal action if this happens.
- 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 us not to.
- It is not reasonable to expect any worker to police co-workers’ toilet access gender. Practically this would warrant people to make judgements about each others’ gender expression or, at worst, encourage violent and invasive checks.
- Forcing trans people to only use accessible / disabled spaces equates being transgender with disability, which it is not, and also takes away that valuable and typically under-resourced space from the disabled community. This policy harms both communities.
We’d urge any member whose employer is doing this to make it known to the union, either via their workplace rep, Unite Regional Officer or to our branch secretary.