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.
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.