SNP's top civil servant insists Government's 'inclusive' single-sex spaces use is lawful

Scotland's top civil servant has insisted the Scottish Government is acting within the law over single sex spaces amid claims it could become "another public body" to potentially fall foul of regulations.

Campaigners who oppose self-ID for transgender people have claimed that Scottish public bodies are not meeting workplace regulations alongside the Equality Act relating to single-sex spaces.

The announcement is a major blow for trans rights campaigners. Picture: PA | PA

The Equality Act states that transgender people can be excluded from single-sex spaces on occasions to provide “a proportionate means of achieving a legitimate aim” such as privacy or prevent trauma.

The workplace regulations, dating back to 1992, require employers to provide a certain number of toilets and separate toilet and washing facilities for men and women in some circumstances.

Read more: John Swinney told to 'lay down the law on single-sex spaces'

The Scottish Government's permanent secretary, John-Paul Marks, who is preparing to leave his role as Scotland’s most senior civil servant, has insisted that John Swinney’s administration’s implementation of single-sex spaces complies with the law and regulations.

The scrutiny comes amid an employment tribunal between nurse Sandie Peggie and NHS Fife.

Ms Peggie was suspended by the health board after an incident with transgender doctor Beth Upton in a female changing room, who made an allegation of bullying and harassment amid accusations, denied by Ms Peggie, that Dr Upton had been compared to a rapist due to her gender identity.

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The veteran nurse took action against the board and Dr Upton, thrusting the issue of single-sex spaces and transgender rights into the limelight- with the case seized by campaigners who have claimed public bodies are not meeting rules.

SNP MSP Michelle Thomson pressed Mr Marks about the Scottish Government’s duties to provide single-sex spaces at his appearance at Holyrood’s finance and public administration committee.

Michelle Thomson MSP SNP should apply her skills to examining the financial details for Scottish independence, writes John McLellan. PIC: Fraser Bremner.

Mr Marks pointed to “an inclusive culture where everybody feels safe at work”.

He added: “I have not had a single escalated complaint to me in my time where that has been a problem.

“If a trans colleague wants to get changed at work, which is quite a rare occurrence for the civil service in the Scottish Government, and they self identify as a woman, it is possible for them to get changed in an enclosed lockable isolated space and if they have self-identified to use changing rooms that themselves have enclosed lockable cubicles.”

Mr Marks stressed that “we’re talking about a tiny minority of colleagues”.

He added: “We have tried at all times to assure ourselves that one, we are lawful, of course, under the Equality Act and workplace regulation and secondly, we are creating a culture that is kind and inclusive and safe for people.

John-Paul Marks is standing down as Permanent Secretary to the Scottish Government. Picture: Andrew Cowan-Pool/Getty Images | Andrew Cowan-Pool/Getty Images

“I think we’ve been working our way through that as carefully as we can.”

But the SNP MSP pressed Mr Marks and his officials over whether they were “completely comfortable, 100 per cent, that you are working within these regulations”.

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Ms Thomson asked for reassurance that “the Scottish Government won’t be another public body subject to potentially costly legal cases”, claiming that “it would have appeared many bodies have remembered about the 2010 Equality Act but forgot about the 1992 regulations”.

In response, Mr Marks pointed to the Scottish Government’s principles of “enclosed, lockable, separate, choice”.

He added: “Given the latest debate around NHS Fife, the Supreme Court case, the questions you are asking, we are asking ourselves.

“We will await any legal judgement and if we have to make some adjustment to our operating practice, we’ll do so.

“Our current view is that we’re doing everything that we should do - lawful, within the various duties including workplace regulation.”