It gives a false sense of certainty that could leave law firms exposed.
The Law Society is the independent professional body for solicitors. It produces guidance for law firms covering a range of topics. One such piece of guidance is a policy template to help law firms draft policies for staff who are seeking to transition their gender. This policy template is revised from time to time, but unfortunately the latest version of the template released on 11 June 2021 contains an incorrect summary of the law as it relates to transgender employees using separate sex spaces.
The Law Society's Template for transition and change to gender expression guide contains the following text:
Toilets and changing facilities
We will discuss with you which toilet and changing facilities make you feel most comfortable and you would like to use.
We will communicate with other employees, so they understand our approach.
[Note for firms/organisations: A trans person’s exclusion from the separate-sex facilities that match their gender identity may be permissible but only where it is justified as a proportionate means of achieving a legitimate aim. This reflects current EHRC guidance. It is good practice to provide some gender-neutral facilities with fully lockable cubicles as well as some separate facilities for men and women.]
The linked EHRC guidance is the Employment: Statutory Code of Practice (‘the Employment Code’).
This is an incorrect summary of the law. The well-known statutory exception (para. 28 sched. 3 Equality Act 2010) allowing the exclusion of transgender people from single and separate sex spaces if it is 'a proportionate means of achieving a legitimate aim' does not apply to discrimination in the course of employment. Further, the Employment Code is silent on this issue.
Should an employer wish to exclude an employee from single-sex toilets or changing rooms, then it would need to rely on the test in the Court of Appeal case of Croft v Royal Mail [2003] EWCA Civ 1045. Unfortunately, this case is nearly 20 years old and there is some debate (R. M. White & N. Newbegin, A Practical Guide to Transgender Law. Law Brief Publishing, 2021, 118) over the extent to which it reflects current law and best practice. An employer who chooses to rely on Croft would need to carefully understand the statutory changes since Croft and more recent decisions such as Taylor v Jaguar Land Rover 1304471/2018.
Given the uncertainty in the law in this area, the Law Society would be best advised not to provide a one-line legal opinion and incorrectly claim this opinion is backed by statutory guidance produced by the EHRC. Not only could this opinion lead to unnecessary discrimination, a law firm might even have to face the financial and reputational consequences of having to pay unlimited compensation as a result of unlawful discrimination.
The Law Society’s guidance in this area is generally high quality and this may seem a relatively minor error. We of course support its intention to assist law firms in their support of trans staff. However, this error has been compounded by an article on legal website, RollOnFriday, which included press comments from the Law Society that reinforce rather than correct the error. A better way to help law firms navigate through this issue would be not to offer an opinion on when trans people can be excluded. Instead leave it to law firms to take appropriate legal advice relevant to their specific situation if they find themselves in the (in our view very rare) position where there is no reasonable course of action other than to discriminate against a trans person.
We have brought this issue to the Law Society’s attention. They have not replied.
Trans Legal Project
21 July 2021