The Scottish Government has been told to confirm within seven days that access to female toilets in its buildings is being restricted to biological women — or face legal action.
Campaigners from the group Sex Matters say the current policy breaches both equality and health and safety law.
In a formal legal letter before action, sent on Wednesday, the organisation said ministers must urgently rewrite internal guidance on single-sex facilities to bring it into line with the recent Supreme Court judgment on biological sex.
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There are 1,016 toilet facilities in the 66 sites that make up the Scottish Government's estate.
Around 18% of the facilities are gender-neutral single-user “superloos”, while the rest are designated as either male or female.
There are also numerous smaller sites — including fisheries and field-monitoring offices — where facilities may be shared or gender-neutral.
In April, the UK’s highest court ruled unanimously that a Gender Recognition Certificate (GRC) does not alter a person’s sex for the purposes of the Equality Act.
The judgment clarified that the terms “man” and “woman” in the legislation refer to biological sex, not acquired gender.
That ruling meant every organisation in the country needed to review their equality policies.
However, earlier this week, Dr Lesley Sawers, Deputy Chair and Scotland Commissioner for the EHRC, told The Herald that Scottish ministers had “a responsibility to ensure their adherence to the Public Sector Equality Duty” — the legal requirement for public authorities in Scotland to consider protected characteristics, including biological sex, when carrying out their functions.
In response, a spokesperson said work was “proceeding at pace to implement the ruling across Government”.
The Scottish Government’s own trans inclusion policy, signed off in January, states that “staff should choose to use the facilities they feel most comfortable with” and that a GRC is not required to access single-sex spaces.
In a letter to John Somers, Director of Equality, Inclusion and Human Rights, Maya Forstater, Chief Executive of Sex Matters, said this policy was “clearly unlawful”.
She added: “The problem is not lack of infrastructure, but that the Scottish Government continues to operate an unlawful policy.
“As far as we can see, there is nothing to stop the Scottish Government immediately bringing the policy on toilets into line with the law, by making 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.
"This would be in line with the Supreme Court judgment and the action taken by the Scottish Parliament.
“It is clearly a reasonably practical step in order to address the risk of individuals using opposite-sex toilets and other facilities.
“Please confirm, therefore, that you will take this step within seven days of the date of this letter.
“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.”
It is the second time in a matter of weeks that Sex Matters has threatened the Scottish Government with legal action over failures to implement the Supreme Court judgment.
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The charity, which intervened in the For Women Scotland case, sent ministers a formal letter before action in June.
The warning came after For Women Scotland’s Susan Smith said people needed to challenge organisations failing to implement the law.
“We are possibly going to have to go back to court in order to get some of the Government policies — especially policies in prison — changed. There are still at least four male murderers in the women’s prison estate in Scotland, and that is a shocking fact.
“But we have [the Supreme Court judgment] now, and this is a fantastic basis to go forward.”
Scottish Conservative equalities spokesperson Tess White said: “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.
“John Swinney’s dithering is creating confusion where there should be none.
“He should apologise for backing Nicola Sturgeon’s reckless gender legislation and act to protect the rights of women and girls by stating plainly that facilities are designated on the basis of biological sex, and that plenty of gender-neutral options are available.”
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.”
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