Gender Scotland: 7-day ultimatum over 'action' on Scottish same-sex toilet access

SNP ministers have been accused of leaving themselves open to fresh legal action after a gender-critical campaign group issued a seven-day ultimatum over access to toilets in government properties.

Sex Matters, which intervened in the For Women Scotland case against which went to the Supreme Court, is threatening a lawsuit against Scottish ministers.

The campaign group has sent a further “letter before action” to the Scottish Government, calling on ministers to make a statement on access to female toilets in its buildings being restricted solely to biological women.

The latest letter has called for action by a deadline of Wednesday next week, after which the organisation said it “may decide to commence proceedings without further warning”.

Members of the For Women Scotland campaign group celebrate the Supreme Court ruling about the definition of the word 'woman' (Picture: Henry Nicholls) | AFP via Getty Images

The Supreme Court’s ruling in April said the words “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex.

Sex Matters has claimed the Scottish Government must make a statement that all single-sex facilities on its estate must be interpreted as meaning biological sex.

Ministers, including John Swinney, say they accept the judgment and have convened a working group to review their policies, as well as having discussions with the Equalities and Human Rights Commission (EHRC).

The gender-critical group, led by controversial campaigner Maya Forstater, sent its first letter before action last month and another was sent to Scottish Government officials on Wednesday.

Campaigners have ratcheted up the pressure with the case of Sandie Peggie, the nurse at the centre of an employment tribunal involving NHS Fife, due to restart in less than a fortnight. Ms Peggie has taken the health board and transgender doctor Dr Beth Upton to tribunal.

The EHRC, headed by Baroness Falkner, who was appointed by former prime minister Liz Truss in 2020, is drawing up a code of practice for organisations to follow, with a final version still to be published and approved by UK Equalities Minister Bridget Phillipson. A public consultation on the draft guidance closed on Monday.

A potential spanner has been thrown in the works of Sex Matters’s pressure after the EHRC was forced to revise its interim guidance, abandoning a previous recommendation that employers must provide single sex toilets, ahead of a potential judicial review of the interim guidance by the Good Law Project.

What the latest letter says

The latest letter gives the Government seven days to respond and says: “To the extent that the Scottish Government does not immediately stop the unlawful practices set out in this letter, we may decide to commence proceedings without further warning.”

The letter notes there are 1,016 toilets across the Government’s core estate, in a mixture of unisex and separate-sex facilities.

The letter calls on the Government to make a statement that “all facilities designated as male or female within the Scottish Government estate are to be interpreted as meaning biological sex, and that gender-neutral options are widely available”.

The Scottish Government’s position

A Scottish Government’s official responded to Sex Matters’ previous letter, saying they accepted the Supreme Court ruling.

The letter, dated June 27, said: “We are now taking action to implement the ruling. This includes the establishment of a short-life working group to review existing policies, guidance and legislation, which may be impacted by the judgment.

“The work of this group is underway and covers all relevant portfolios across government. This work is enabling us towards a state of readiness to take all necessary steps to implement the ruling.”

Scottish Conservative MSP Tess White said of the fresh letter: “The SNP Government must stop dragging its heels. The Supreme Court ruling was crystal clear, and so was the Equalities and Human Rights Commission’s guidance in the wake of it, so there is no excuse for the SNP failing to comply fully with the law now.

“Indeed, their failure to do so is leaving the Scottish Government and its public bodies open to the legal challenge Sex Matters are threatening.”

First Minister John Swinney. Picture: Jane Barlow/PA Wire

In the wake of the Supreme Court judgment, Mr Swinney told journalists he would not immediately implement the controversial interim guidance by the UK equalities watchdog and would instead "wait for definitive full guidance" to "give legal clarity".

He said his government “expect to get that guidance in the summer”.

Officials say full guidance is needed

The Scottish Government's permanent secretary, Joe Griffin, said last week: “Every public body has to take its own decision in the light of its understanding of its legal duties and based on the advice that it is getting.”

A Scottish Government spokesperson said: “The Scottish Government has made clear it accepts the Supreme Court ruling and since April has been taking forward the detailed work that is necessary as a consequence of the ruling. That work is ongoing.”