With the Equality Commission dodging giving guidance on the Supreme Court sex ruling - what happens next?

The equality commission (ECNI) argument is that what sex means in law needs to be defined by the courts – and they have therefore issued an interim view on “practical ways” that organisations “can create facilities which allow all people to feel comfortable”.

For example, on the provision of toilet facilities they suggest two options. Firstly, that employers or businesses could “provide facilities for showering, toileting and changing which consist of entirely self-contained lockable rooms to be used by one person at a time”.

Given that this is interim guidance, that will be seen as unrealistic, given the costs involved. ECNI says that existing facilities which are thought of as unisex may be “sufficiently private and secure to fall within this suggestion” – but not all.

Secondly, that organisations could provide separate facilities according to biological sex (i.e. the existence of a Gender Recognition Certificate and / or a transgender identity is irrelevant) whilst also ensuring that there are additional universal facilities which are to be used by all people (regardless of biological sex or transgender identity).

ECNI has set out a “roadmap” for what it will do next, the report issued on Friday being the first step. It says this “identifies the many legal uncertainties and poses various questions about what final guidance stakeholders will need” from it.

There will then be a 12 week consultation period in which all stakeholders will have an opportunity to respond and comment on the issues. That will be followed by ECNI sending “pre-action protocol letters” to people and organisations that they “consider have a direct interest in resolving the legal uncertainties identified”.

It will then ask the High Court for a declaration on the “correct legal approach” – before providing draft guidance which will then be subject to a consultation. When that is complete, ECNI will finally produce guidance for employers and service providers.