How public services are breaking law over single-sex facilities, exposing them to mass compensation claims

Public services should provide single-sex spaces for males and females, plus a third category of changing facilities open to all, including trans men and women

If ever an illustration were needed of how badly wrong the SNP government got the whole issue of gender reform, it came at the weekend when the former First Minister Nicola Sturgeon was loudly booed and heckled by a group of feminists as she arrived at a party event in Edinburgh to celebrate International Women’s Day.

For someone who once described herself as “a feminist to the fingertips”, it must have been galling to face this reaction from people she would once have regarded as political soulmates.

Those present chanted “shame on you” at her in an echo of the words she shouted at me in the Holyrood Chamber more than two years ago, during a speech in which I said I had met women outside the parliament protesting against the Gender Recognition Reform Bill.

Dr Beth Upton, centre, leaves an employment tribunal in Dundee where nurse Sandie Peggie has brought a case against NHS Fife (Picture: Andrew Milligan) | PA

Gender self-identification

It is an issue which has dogged the SNP leadership ever since the abortive attempt to change the law in this area, one where both Nicola Sturgeon and her then deputy, and now successor, John Swinney, find themselves woefully out of touch with public opinion.

The matter has been thrown back into focus by the case of Sandie Peggie, the Fife nurse currently taking her employers at NHS Fife to an employment tribunal, following her suspension after she complained about having to share a changing room with a biologically male trans woman, Dr Beth Upton.

What has been disclosed in the course of that hearing indicates a widespread problem across Scotland’s public sector agencies, in that they have effectively implemented policies of gender self-identification, which have never been consulted on, properly debated, or endorsed by parliament.

Worse still, the approach taken not just by the NHS in Scotland, but across a broad range of other public agencies, appears to be contrary to both the 2010 Equality Act, and the Workplace (Health, Safety and Welfare) Regulations 1992, which provide for single-sex facilities for sanitation, washing and changing in all public buildings.

Gender- neutral toilets in schools

What these laws mean, in simple terms, is that hospitals, schools, and all public sector workplaces must have single-sex facilities, in other words places where women and girls can wash and change without males present. To fail to do so is unlawful.

Better lawyers than me have made the case that the protection of the characteristic of “gender reassignment” under the Equality Act does not supersede the 1992 regulations, nor does the Equality Act provide for a hierarchy of rights. In summary, the rights of an individual with the protected characteristic of gender reassignment do not outweigh the rights of another individual with the protected characteristic of sex.

As we see in the Sandie Peggie case, this presents real difficulties for public bodies’ policies effectively recognising gender self-identification for the purpose of access to facilities. Last week NHS Scotland was revealed to be developing new guidance mandating that transgender health staff must be allowed to use their “preferred” facilities, unless there was a particular reason, to be determined on a case-by-case basis.

Similarly, we see schools now providing gender-neutral toilets without specific single sex spaces for girls. This had led to reports of girls being harassed or even assaulted, with some now saying that they are actually scared to use school toilets, instead leaving the premises to use facilities in nearby cafes or supermarkets.

SNP in thrall to trans activists

It is now clear that the approach taken by so many public bodies is contrary to law, and that carries real, and potentially very serious, consequences for the Scottish public sector. It lays public bodies open to legal claims by women and girls who have been forced, against their will, to share facilities with men and boys, or even transwomen. It is not hard to foresee civil claims firms, or specialist litigation lawyers, seeking to sign up clients in exchange for the offer of potential compensation.

It remains a mystery as to why SNP ministers allowed this situation to develop. They seem to have been so in thrall to the trans activist lobby that they were reckless in not properly considering the legal consequences of allowing public agencies to go down this route. Ultimately it will be public services which suffer should we face a barrage of legal cases and compensation payouts.

There are, of course, trans individuals who have rights too and whose welfare must be considered. The answer here therefore would seem to be an obvious one, in the provision of single-sex spaces for both males and females, and a third category of toileting and changing facilities which would be open to all, including transmen and women, just as we have distinct provision for the disabled. Such a policy introduced across the public sector would both address the legal issues that have arisen, and respect the dignity of all those involved.

Significant financial losses

John Swinney has said that he supports single-sex spaces for women, but confuses the matter by saying that he still supports the now abandoned Gender Reform Bill. His stance appears to be that his definition of “women” includes biological males who are trans-identified.

This just muddies the waters. Scotland’s public sector needs a clear lead from the Scottish Government on their legal obligations in this area. Public agencies have for too long been subject to policy capture by trans activist groups, a position which may now lead to significant financial loss.

This week at Holyrood, the Scottish Conservatives are calling for the Scottish Government to provide clarity to the NHS, to the police, to universities, and to the whole landscape of public bodies across Scotland, on their legal requirement to provide single-sex spaces for women and girls. If they fail to do so, it won’t just continue to put women and girls at risk, it could cost all of us dear. What a legacy that would be for our ‘feminist’ former First Minister.

Murdo Fraser is a Scottish Conservative MSP for Mid-Scotland and Fife