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Conveniences can be inconvenient

The right for trans people to use the toilets of their choice is a politically and socially charged issue which currently features prominently in the media both in the UK and overseas. The recent decision from the Jersey Employment and Discrimination Tribunal in Ms E Blisson v. Condor Limited highlights the typical fact pattern which can often cause disputes to arise. To avoid such disputes, the key for UK property professionals is to understand their legal obligations at the outset. This, however, can be far from straightforward.

In the Condor case, a trans woman successfully claimed against a ferry operator for direct discrimination because she was forced to use the disabled toilets when aboard the ferry. Condor admitted to a “non-intentional and non-malicious act of discrimination“. The Tribunal held that Condor had been discriminatory and ordered it to amend its policies and signage to ensure such discrimination did not occur in the future.

In the UK, the legal framework that property professionals must be aware of is the Equality Act 2010. The Act places obligations on property managers as well as owners. In essence, one cannot discriminate against a person because that individual is a trans person when either providing toilet facilities, or deciding who may use such facilities and how those facilities must be used. There is an exception which permits the provision of separate facilities for persons of each sex if that provision is a proportionate means of achieving a legitimate aim.

The Act makes broad statements of principle but this doesn’t really clarify what actions property professionals should take to avoid falling foul of the law. Whilst social attitudes and the law which reflects them may change, buildings are often constrained by their original design, especially where alterations are required to core services. The result is that changes to toilet facilities’ layout or allocation are difficult to implement.

Government guidance seems to suggest that the construction of additional facilities is not necessarily required. The guidance states that “a trans person should be free to select the facilities appropriate to the gender in which they present“. Property professionals should be aware that when a trans person lives in their acquired gender role on a full time basis they should generally be afforded the right to use the facilities appropriate to that acquired gender.

The cautious approach is therefore to allow trans people the right to use the facilities of the gender that they identify with, rather than the gender they were born with. A potential alternative is the conversion of all existing single-sex facilities to unisex. However, even the latter option may necessitate substantial alterations and this may not be feasible in the circumstances.

To avoid sanction for unintentional discrimination, property professionals should keep in mind all potential visitors to their properties prior to deciding how the facilities within a particular property are to be run. This in turn should facilitate the formulation of internal policies that are compliant with the Equality Act 2010 and avoid disputes like those in Condor.

Case: Ms E Blisson v. Condor Limited [10/2015]