Scottish Government warned over single-sex toilet policy
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The warning centres on the Scottish Government estate — made up of 66 sites and 1,016 toilet facilities — where existing policy allows staff to use facilities based on self-identified gender rather than biological sex.
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 means biological sexWhile First Minister John Swinney initially welcomed the 'clarity' provided by the ruling, the Scottish Government has 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.
However, earlier this week, Dr Lesley Sawers, Deputy Chair and Scotland Commissioner for the EHRC, told The Herald that Scottish ministers had 'a responsibility to ensure their adherence to the Public Sector Equality Duty' — the legal requirement for public authorities in Scotland to consider protected characteristics, including biological sex, when carrying out their functions.
In response, a spokesperson said work was 'proceeding at pace to implement the ruling across Government'.
The Scottish Government's trans inclusion policy, signed off in January, states that 'staff should choose to use the facilities they feel most comfortable with' and that a GRC is not required to access single-sex spaces.
In a letter to John Somers, Director of Equality, Inclusion and Human Rights, Maya Forstater, Chief Executive of Sex Matters, said the policy was 'clearly unlawful'.
She added: 'The problem is not lack of infrastructure, but that the Scottish Government continues to operate an unlawful policy.
'As far as we can see, there is nothing to stop the Scottish Government immediately bringing the policy on toilets into line with the law, by making a statement that all facilities designated as male or female within the Scottish Government estate are to be interpreted as meaning biological sex, and that gender-neutral options are widely available. This would be in line with the Supreme Court judgment and the action taken by the Scottish Parliament.
'It is clearly a reasonably practical step in order to address the risk of individuals using opposite-sex toilets and other facilities.
'Please confirm, therefore, that you will take this step within seven days of the date of this letter.
'To the extent that the Scottish Government does not immediately stop the unlawful practices set out in this letter we may decide to commence proceedings without further warning.'
The Workplace (Health, Safety and Welfare) Regulations 1992 require separate changing and toilet facilities for men and women 'where necessary for reasons of propriety'. Failure to provide such facilities, or to protect staff from discomfort or distress in those spaces, may also amount to unlawful harassment under the Equality Act.
The Scottish Government has been approached for comment.
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