Scottish Government to review 'unlawful' trans policy
In a formal legal letter before action, the group called on SNP ministers to urgently rewrite "clearly unlawful' internal guidance to bring it into line with the recent judgment on biological sex from the UK's highest court.
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The Scottish Government confirmed to the group that the policy is being looked at. However, it said it had not been amended and that there were complexities that need to be considered.
There are 1,016 toilet facilities in the 66 sites that make up the Scottish Government's estate. Around 18% of the facilities are gender-neutral single-user "superloos", while the rest are designated as either male or female.
There are also numerous smaller sites — including fisheries and field-monitoring offices — where facilities may be shared or gender-neutral.
In April, the UK's highest court ruled unanimously that a Gender Recognition Certificate (GRC) does not alter a person's sex for the purposes of the Equality Act. The judgment clarified that the terms "man" and "woman" in the legislation refer to biological sex, not acquired gender.
That ruling meant every organisation in the country needed to review their equality policies.
The Supreme Court ruled that sex in the Equality Act meant biological sexWhile First Minister John Swinney initially welcomed the "clarity" provided by the judgment, the Scottish Government has previously said it is waiting for further guidance from the Equality and Human Rights Commission before issuing new advice to Scotland's public sector — including prisons, schools and the NHS.
In her letter to Sex Matters, Nicola Richards, the Scottish Government's director of people, said they did not agree that it was "appropriate or straightforward to take immediate steps" to bring its toilets policy into line with the Supreme Court's ruling.
She cited the Good Law Project's legal challenge to the Health and Safety Executive's interpretation of the Workplace (Health, Safety and Welfare) Regulations 1992 as a reason for a lack of action on the policy.
Dr Richards wrote: "Given these complexities, the Scottish Government does not agree that it is appropriate or straightforward to take immediate steps to either withdraw or amend the current policy.
@It is my understanding that the approach of the Scottish Government in this regard, of reviewing policies and, where appropriate, seeking guidance from the Equality and Human Rights Commission (EHRC), is consistent with the position of the UK and Welsh Governments.
"Appropriate changes will be made to the policy referred to in your letter, and others impacted by the ruling, as soon as the Scottish Government has further clarity. This will follow any required and appropriate consultation and engagement."
Ms Richards has also offered to meet with Sex Matters.
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Maya Forstater, the founder of the group, said they had accepted the offer in "the hope of gaining clarity about how the Scottish Government is currently managing its workplace facilities, and when it intends to bring them into line with the law".
She added: "Tomorrow would be a good answer. It is now three months since the Supreme Court ruling and, this week, the Sandie Peggie tribunal resumes.
"It is atrocious that public bodies are still dragging their feet and describing the question of whether female staff deserve privacy and dignity as complex.
"Parliament makes the law and the highest court in the land has now clarified its meaning."
She added: "Whether or not we pursue legal action depends entirely on what the Scottish Government does next."
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