SNP could look again at self-ID female lavatory policy

Telegraph

18-03-2025

The SNP government's self-ID policy allowing trans civil servants to access female toilets will be reviewed if two landmark legal rulings suggest it is unlawful, Scotland's most senior mandarin has said.
John-Paul Marks, the Scottish Government's permanent secretary, expressed confidence that the policy allowing male-bodied trans employees ' to use the facilities they feel most comfortable with ' was legal.
But he said the guidance would be looked at again following a forthcoming ruling in an employment tribunal in Scotland about the right of trans people to access female-only areas.
NHS Fife accused nurse Sandie Peggie of misconduct after she challenged the presence of Dr Beth Upton, who was born male but identifies as a woman, in a female changing room in a hospital.
The UK Supreme Court will also shortly issue its ruling over the definition of 'woman' and whether it includes a trans person with a gender recognition certificate.
The Scottish Government's lawyers argued during the case, which was brought by the feminist campaign group For Women Scotland (FWS), that Equality Act protections are capable of applying to a 'pregnant man' who was born female.
Mr Marks told Holyrood's finance and public administration committee that the Scottish Government would make any ' adjustment to operating practice ' that was required after the legal judgements were issued.
He also told MSPs that the Scottish Government provided separate, lockable cubicles that could be used by trans staff and he had never received an 'escalated' complaint on the issue since becoming permanent secretary at the start of 2022.
'This could prove expensive!'
But FWS accused him of being 'utterly cavalier about law and safeguarding' and warned the Scottish Government could face compensation claims from female staff.
In a post on social media, the group said: 'We would be astonished to learn that all toilet and changing provision in Scot Gov buildings is single use cubicles.
'The permanent secretary is wrong. Self-ID is not lawful. He might not care, as he is leaving, but this could prove expensive!'
Scottish Government guidance for its trans employees states they 'should choose to use the facilities they feel most comfortable with'.
There is no requirement for them to have undergone any medical procedure or to have changed legal gender, meaning all that is needed is for them to self-identify as women.
However, an academic expert warned the guidance was a 'clear breach' of employment law, which stipulates that separate communal changing and lavatory facilities must be provided for male and female workers.
Dr Michael Foran, of the University of Glasgow, said the definition of 'woman' for the purposes of the Workplace (Health, Safety and Welfare) Regulations 1992 did not include trans people who self-identified as women.
Michelle Thomson, an SNP MSP, asked Mr Marks whether the Scottish Government was 'reassessing your legal advice' about whether its self-ID policy complied with employment law.
He said: 'You would expect, given the latest debate around NHS Fife, the Supreme Court case the questions you're asking are questions we've asked ourselves to assure ourselves.'
'This is clearly a very sensitive debate'
Mr Marks argued that the Scottish Government's provision of separate, lockable spaces meant it complied with the Equality Act and the 1992 regulations.
'But this is clearly a very sensitive debate. There are two legal cases currently live so, of course, we will await any legal judgment and if we have to make some adjustment to operating practice, we'll do so,' he said.
'Our current view, assured again, is that we're doing everything as we should do, lawful within the various duties including workplace regulation, but will continue to be vigilant to that.'
He said the Scottish Government wanted to 'create an inclusive culture where everybody feels safe at work' and said there are several 'staff networks to represent gender interests, women's interests in that regard'.
But he was pressed whether one of the groups that are consulted on policy, the Scottish Government's Women's Development Network (WDN), allowed male-bodied trans people to join it.
A Freedom of Information response issued earlier this year states that 'WDN membership encompasses all social identities, including (but not limited to) age, gender identity, sexual orientation and race.'
Lesley Fraser, the Scottish Government's director-general corporate, referred to the trans self-ID policy and said it had been introduced to 'enable that all of our colleagues can operate in a way that gives us, we hope, an inclusive and welcoming culture.'