Dear Simon Davis
We write regarding the Transition and Change to Gender Expression Template published by the Law Society in August 2020 and particularly about the suggestion that gender reassignment means that individuals should “use the facilities that make you feel most comfortable”.
While the status of the Template is unclear, members and firms would expect it to be legally accurate and to recommend best practice. Our concern is that neither expectation is fulfilled for the following reasons:
1. It misunderstands the protected characteristic of sex. The Equality Act 2010 definition makes no reference to stereotypes and simply refers to the condition of being either male or female. Referencing stereotypes as a definition for sex is inaccurate and will tend to reinforce sex discrimination.
2. No consideration of women’s rights or interests has been undertaken and this is particularly important, as women are not well represented at partner level in law firms. Many women, whether for reasons of privacy, dignity, safety or for religious reasons or previous trauma from male violence, are not comfortable using mixed sex facilities. It is surprising therefore that the impact on women has not been considered and no consultation undertaken with the broader membership.
3. The Template encourages law firms to breach the Equality Act 2010. The Act contains single-sex exceptions enabling employers and service providers to provide single-sex facilities where objectively justified. Women are entitled to expect their employer to provide single sex facilities (and to exclude men and transwomen regardless of their legal sex). We consider that failure to invoke the exceptions is likely to be indirectly discriminatory, placing women at a particular disadvantage without justification.
4. The Law Society endorsement of this Template encourages employers to breach the requirements of Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992, that employers provide single sex toilet and changing facilities save in circumstances where there are separate lockable rooms (meaning separate lockable rooms not merely separately cubicles). Breach of those regulations can be prosecuted as a criminal offence.
We do not single out the Law Society for criticism, as other organisations such as ACAS and government bodies have also produced incorrect guidance. It seems that that policy has been “copied and pasted” by non-lawyers who are not abreast of the relevant up-to-date statute and case-law. However, we would have expected a better standard of guidance to come from the Law Society.
We request the withdrawal of the Template as a matter of urgency, with a revised Template being issued only after advice has been obtained from a specialist discrimination lawyer. Members of Legal Feminist would be happy to assist.
Yours sincerely
The Legal Feminist Collective
We are a collective of practising lawyers – solicitors and barristers – who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas, including employment law, discrimination law and public law.
Excellent. The insidious spread of unlawful guidance under the guise of inclusivity needs to stop. Female spaces are not inclusive of males.
“Women are entitled to expect their employer to provide single sex facilities (and to exclude men and transwomen regardless of their legal sex”
This is a novel legal doctrine that has no basis in either legislation or precedent.
“Women are entitled to expect their employer to provide single sex facilities” – I presume you have no argument with this, as it is specified in legislation.
“(and to exclude men and transwomen regardless of their legal sex)” – Saying “no basis in either legislation or precedent” seems a bit strong. There are exceptions to provision of single sex facilities, i.e. transsexuals may be excluded as “a proportionate means of achieving a legitimate aim”. It could well be argued that to failure to apply the exception, particularly when there has been no consultation with women and when no account of religious belief has been taken into account, could amount to indirect discrimination (as stated in the article).
Wow, point 4 is very interesting. I’ve recently been checking various policies that govern my life. My council, my union (Unite), and my employer all have policies stating that self ID applies. I think this is very common. Why have there been no prosecutions? How can I make a criminal complaint?
Awesome. Thank you for doing this. I have watched in horror as the legal profession has gone down this route, while law firm employees are too afraid to speak up. That the law society is providing this guidance adds gravitas to a completely incorrect/disingenuous reading of the law.
Even the EHRC guidance was wrong on this matter. So thank you feminist lawyers, and others following their correct reasoning!
Just yesterday evening an 82 year-old female friend of mine (( I am 84) was expressing her disaffection with and disappointment in a local arts centre which she has joyfully attended and participated in as a ceramist herself for may years, because ‘new management’ has included making the men’s and women’s toilets unisex. No women appear happy to use the ex-men’s room even though she learns urinals have been removed, versus many men laying claim to the ex-women’s. She, after undertaking a pottery session and wanting to change her clothes has now to do so in front of men. Why should her need for privacy and dignity be so undermined? If it ain’t bust, don’t fix it. The numbers of transpeople is so small, surely a separate toilet or two can be set aside for ‘gender neutral’ or ‘all genders’ use? And/or, make one of the two existing toilet facilities for women only, and the other for ‘all genders’ with apologies to those men who do not want to share with women. NB: There should already be at least one toilet for disabled people. Since this is usually a whole room lockable – see the legal feminist argument pointing out the distinction between cubicle and room – and is already all-gender accessible, perhaps this might serve but only if this does not disadvantage disabled people’s use.
Excellent, thank you for doing this to re-enforce the current interpretation of the legislation, woeful that it is needed. The TRAs ought to be fighting for their own gender neutral toilets and spaces and not trying to shoehorn themselves into women’s spaces with no consultation from those most adversely affected.