Transgender employees, toilets, changing rooms and the Workplace (Health Safety and Welfare) Regulations 1992

Transgender employees, toilets, changing rooms and the Workplace (Health Safety and Welfare) Regulations 1992¹

A short paper by Robin Moira White, 24 February 2025

Introduction

In recent weeks there have been suggestions that this 30-plus year old set of regulations provide reasons for excluding transgender employees, particularly those undergoing gender transition from facilities used by other employees.

This is fallacious, for three reasons related to the regulations themselves: the ‘mischief’ they were designed to rectify; the date of the regulations and the absence of a definition of ‘male’ and ‘female’ in the regulations (or at large). I will examine these features in turn.

I will then consider the effect of the Gender Recognition Act 2004 and the Equality Act 2010 on the position of trans (and other) employees in such facilities in the workplace.

The relevant parts of the regulations are set out in an Appendix.

‘Mischief’

It is, I find, an advantage to be very old, in that I started work in the rail industry before the 1992 Regulations were in force. The rail industry was sexist and misogynistic. Provision for female staff was ‘OK’ around office blocks and passenger stations for obvious reasons, but even in the middle 1980’s, a decade after the Sex Discrimination Act had been passed, facilities for women were woeful at many depots and engineering facilities. A few women had been seen in the rail industry during WW2 but the return of the men from fighting had seen them displaced and not replaced. The arguments were often circular. Female apprentices were not employed because there were no female facilities and female facilities were not provided because there were no female apprentices or artisans. Such was the position in may ‘traditional’ industries. I vividly remember that at one train depot we visited as a group of management trainees, the male trainees ‘guarding’ the male facilities after checking they were empty so that our female colleagues could use them.

And this is what the 1992 Regulations were designed to deal with. This was the problem they were designed to solve, and that is why they refer to male and female facilities and the PROVISION of facilities, not their policing.

‘Date’

Trans people were not on the legislative horizon in 1992. P v Cornwall and the 1999 Regulations² which gave protection to trans people in UK Law for the first time were a whole administration away. No-one drafting the 1992 Regulations gave the slightest thought to trans people.

‘Male’ and ‘female’

There is no definition of ‘male’ or ‘female’ in the Regulations. There is no ‘common law’ definition of ‘male’ and ‘female’ in UK Law and I challenge anyone to identify it, despite the fact that quite senior Counsel, on occasion, have told judges with a straight face that there is.

We must turn to the case law. Many have heard of the divorce case of Corbett v Corbett 1970³ in which the (not so) Honourable Arthur Corbett hit on the wheeze of having his marriage to transsexual model April Ashley declared void to avoid making a divorce settlement. Until this case many Registrars had been treating transsexual individuals as a sub-category of intersex and had been quietly rectifying birth certificates. This case stopped that to the chagrin of trans people. Medically qualified judge Ormerod J decided the case on the basis that April was biologically male (despite sex reassignment surgery) and so the marriage was void.

However, the case report repays careful reading and is more sophisticated than is often remembered. Ormerod J was very clear that he was only dealing with marriage, and stated in terms:

“I am not concerned to determine the ‘legal sex’ of the respondent (Ashley) at large.”

He noted that she was registered by the government as female for National Insurance purposes,

And identified three categories of an individual’s relationship with others and society where sex might be:

“… irrelevant; relevant; or determinative…”

And in the context of marriage at the time, decided that biological sex was determinative. He even made remarks about the difference between sex and gender. It will be seen that his approach is remarkably close to the in For Women Scotland v Scottish Ministers in the Scottish Court of Sessions (Inner House)⁴ was found that the meaning of male/male and woman/female in the Equality Act 2010 was context-specific.

Corbett was followed in the criminal case of Tan⁵, about the provision of sexual services, which inevitably took a ‘biological’ view of sex in its particular area.

In Bellinger v Bellinger in 2003 the House of Lords took the view that social moirés about marriage had not moved on significantly from Corbett, and / or it was not for the Law Lords to change the institution of marriage. Equal marriage did not come along in the UK until 2014.

It is notable that these cases are all in Ormerod J’s ‘determinative’ category and meanwhile trans people had been registering for work, being given driving licenses and passports and the like reflecting their affirmed gender, so when in Forstater v CGD⁶ Ben Cooper KC told the tribunal that it was the common law position that for all legal provisions sex is regarded as binary and fixed at birth, that was partially correct. He cited Corbett and Chief Constable of West Yorkshire v A (No.2)⁷. However, in giving judgment in Forstater, Choudhury P quoted the full paragraph from ‘A’ which includes Baroness Hale’s comment that:

“Since then it has been assumed that a person’s gender is fixed at birth for the purpose of all legal provisions which make a distinction between men and women.”

But it will also be seen that this assumption is based on the limited category of cases coming before the courts.

There is no good reason why in the context of the workplace, why in the early 21st century, ‘man’ should not be taken to include ‘trans man’ and ‘woman’ to include trans woman. It has certainly not been tested in court.

Statutory Guidance on the Regulations⁸

The statutory guidance on changing rooms produced by the H&SE is very sensible. Paragraph 221 bears repetition in full:

‘221 The changing facilities should be fitted with adequate seating and contain, or connect directly with, clothing accommodation and showering/ bathing facilities. They should be accessible from workrooms and eating facilities, and ensure the occupier’s privacy.

The last five words are very instructive:

‘ … and ensure the occupier’s privacy.’

Occupier, singular.

So what the guidance envisages is that in changing facilities, each individual occupier should have privacy. Is not that what we would expect? Few of us would wish to be naked with work colleagues (and those of who would want to be are, frankly, rather troubling, in my view.

So if there is a communal locker room, there should be individual changing facilities and so -problem solved.

Toilets have individual stall for privacy and practice is moving to either provide individual toilet rooms with handbasin, or at least one such facility in group facilities. My friend with a colostomy finds that helpful as do those who are specially sensitive for religious reasons, personal reasons related perhaps to sexual assault or those trans people early in their transition.

Gender Recognition Act 2004

Where an individual has achieved a Gender Recognition Certificate Under the Act, they are to be treated, b s9 ‘for all legal purposes’ as being of their recognised sex. None of the exceptions in that Act or elsewhere apply to the workplace.

Equality Act 2010

The position is less definite with a worker transitioning who has not achieved a Gender Recognition Certificate – this can take 2-7 years. The best analysis for their position is that it would be indirect gender reassignment discrimination not to allow them to use changing or toilet facilities consistent with their affirmed gender / sex – as other workers who do not have the protected characteristic of gender reassignment can.

Indirect discrimination allows in some flexibility where a restriction on use of facilities can be ‘justified’ (and so be lawful) as a ‘proportionate means of achieving a legitimate aim’. Thus it might be proportionate not to allow use of opposite-sex facilities until a certain stage of transition has been reached, or other employees have been informed. This is consistent wit the position in Croft v Royal Mail⁹.

Reading across from service provision

Care must be taken in reading across from the service provision sections of the Equality Act to those related to the workplace. But there is some communality. For example, in a retail or sports club environment the staff and public might well be using the same toilet and changing facilities and it would seem odd, indeed if the provision for service users – often unknown members of the public – were more generous than for members of staff whose personal circumstances are likely to be well known.

The statutory code is clear that those being provided a service should normally be provided that service in their affirmed gender¹⁰ but there can be exceptions¹¹ where providing a service differently if a proportional means of achieving a legitimate aim, which can include comfort or propriety for other service users.

This is very like the justification defence built into indirect discrimination.

Policy

Plainly it is sensible for any but the smallest employer to have a transitioning at work policy, to have consulted on it widely and to attempt to ensure that the needs and concerns of all employees are dealt with sensitively.

Note:

Please note that this paper does not constitute legal advice. Discrimination situations are also highly fact sensitive and organisations and individuals should seek legal advice.

Robin Moira White
24.2.25

APPENDIX

Relevant Provisions of the Workplace (Health, Safety and Welfare) Regulations 1992

Sanitary Conveniences:

… sanitary conveniences shall not be suitable unless –

20(2)(c) separate rooms containing conveniences are provided for men and women except where and so far as each convenience is in a separate room the door of which is capable of being secured from the inside.

Washing facilities

… washing facilities shall not be suitable unless –

21(2)(h) separate facilities are provided for men and women, except where and so far as they are provided in a room the door of which is capable of being secured from the inside and the facilities in each such room are intended to be used by one person at a time.

Facilities for changing clothing

24(2) … the facilities …. shall not be suitable unless they include separate facilities for, or separate use of facilities by, men and women where necessary for reasons of propriety …

References

1. SI 1992/3004
2. Sex Discrimination (Gender Reassignment) Regulations 1999, SI 1999/1102
3.  2 All ER 33
4.  [2023] CSIH 37
5.  [1983] QB 1053
6.  UKEAT0105/20
7.  [2005] I AC 51HL
8.  Approved Code of Practice and guidance L24 (second edition) 2013 ISBN 9780717665839
9.  [2003] IRLR 592
10.  Code of Practice p197, para 13.57
11.  EqA 2010 Sh 3 para 28