Thread by @MForstater

A 🧵about signs.

What do I mean by this sign excludes all men?

I mean the sign itself is discriminatory.

It says women only, which means no men.
It is lawful because the situation meets one or more of the “gateway conditions” for a lawful single sex service in the EqA, and it is a proportionate means to a legitimate aim.

Who does the sign discriminate against? 

Men directly.

What all of them?

Yes, because they are all excluded by the rule. Even the femmes, the crossdressers, the transwomen, the non-binaries and the gender fluids.

Even if there was no one around to enforce it the sign still discriminates against all these people because they could be challenged or asked to leave.

Even if some men ignore the sign and sneak in, the sign still discriminates against them.

They could sue, except for the exception in schedule 3 which disapplies the prohibition against sex discrimination.

Who else does the sign discriminate against?

It discriminates against women who've taken steps to look very much like men.

They are not directly excluded by the sign.

But if they use the facility they are likely to get challenged. They could perhaps explain themselves but they would be pushed into sharing personal information.

So they face discrimination by perception (they are perceived as men) and/or because of gender reassignment.

But there are exceptions in the act so they can't sue either.

So they face discrimination by perception (they are perceived as men) and/or because of gender reassignment.

But there are exceptions in the act so they can't sue either.

The pair of signs male and female mean that there is nowhere comfortable for trans people to go.

This is not a consequence of the Equality Act, or anything the SC said, or me being mean, it is just a consequence of the signs.

Not all lifestyles are compatible with every situation.

This business is not going to be able to serve observant Jews, Muslims or ethical vegans.

Having only male and female toilets is potentially unlawful indirect gender reassignment discrimination.

But that is also covered by Schedule 3, and in any case indirect discrimination can be justified if it is a proportionate means to a legitimate aim.

That means the employer or service provider has to think through whether there is a less discriminatory way to provide the service.

The obvious less discriminatory way is to provide a unisex option.

In most cases this is going to be an accessible toilet.

This is lawful because these toilets are not required to be for the exclusive use of people with disabilities.

If the venue has lots of trans people, or lots of disabled people (perhaps it is a university where 10 % of the students claim to be trans or non binary and 20% declare a disability) then they should consider if they need more gender neutral single user and/or accessible facilities.

But for most service providers and/or employers just following the building code will be fine.

This is what the building code (approved document M in England) says - there are similar elsewhere

Building codes mean that building owners don't have to think too hard about how to comply with regulations.

There is a very standard set of specifications.

You probably haven't read the building code but this four cubicle layout will be very familiar to women.

Building code T (for England) is more recent it says that where space allows toilets must be separate sex, with unisex as an addition, not instead.

It also defines separate sex toilets and says that they need clear signage.

The building codes only relate to new builds and refurbishments.

But this means that it is not lawful (at least in England) to just rip out single sex toilets and replace them with all unisex.

So for service providers and employers it is relatively straightforward.

If you have toilets which comply with the building code then everyone is catered for and you are at no risk of unlawful discrimination.

The idea (e.g. from trans legal project) that unisex options are exceedingly rare is bunk.

They are in the building code

There is one situation where they are not: older cafes and pubs in small buildings, which may sometimes have just two toilets male and female, usually up or down some stairs and no unisex accessible facility at all.

This provision excludes some disabled people and trans people (and it's not great for parents with buggies) but it may be justified - the space is just too small.

Local licensing rules apply to cafes and pubs and will depend on space.

In this situation, where you have only two fully enclosed single user rooms, the service provider might want to make both unisex, or they might explain to anyone who can't use these less than ideal provisions where the nearest unisex accessible facilities are.

In this situation where they have only two fully-enclosed single user rooms the service provider might want to make both unisex, or let people who can't use the less-than-ideal provision know where the nearest unisex accessible facilities are.

Can't you just let trans people use the opposite sex facilities?

No.

In an emergency people may need to break a rule, but this does not mean that you can have rules that are made to be broken.

For the sign to be lawful it has to mean something, and that thing is single sex.

(This is what the Supreme Court made absolutely clear)

You can think of taking an inquiry over the phone, or the training you might give staff.

Who can use the women's toilet?
-Women only.

Can men who identify as women/non binary/ femmes use it?
- No, sorry.

Do you have suitable facilities for these customers?

- There is a unisex option/ there is a unisex option nearby

If you answer “yes” to can men who identify as women/come in then there is no way to exclude any man.

This is not a workable rule and doesn't meet the gateway condition in the Equality Act of being a proportionate means to a legitimate aim for excluding men, it doesn't meet any licensing requirement for single sex toilets, and it is likely to be sex discrimination against women.

The EHRC statutory code on this is wrong and always has been.

I have been saying this since 2019!

It puts trans people, other service users and service providers at risk.

They should put a clear warning on it NOW.

With paragraph numbers to avoid.

https://x.com/fairplaywomen/status/1159539735825735683?t=Lc2IWMfTMPUrEI84Ts5YPw&s=19

@threadreaderapp unroll please