Delegates to PCS conference have received an email from the General Secretary and President, Fran Heathcote and Martin Cavanagh, instructing them to strictly interpret the Supreme Court judgement on single-sex provision of services.

In it, it states: “We are well aware of the strength of feeling generated by the recent Supreme Court’s judgment and of our duty to act in accordance with the Equality Act 2010. To confirm, the Supreme Court of Justice which is the highest court in the land, held that the statutory reference to protection because of sex means biological sex i.e. those born male or female. The Equality Act 2010 also provides protection from discrimination for trans people under the protected characteristic of gender reassignment. […]

The Building Regulations 2010 (in England) require single sex toilets to be provided. The Brighton Centre provides those. The Brighton Centre also provides ‘toilets for everyone’. We are therefore confident that the centre provides the appropriate range of facilities. It is important to remember that, irrespective of our personal views, any breach of the Equality Act 2010 may give rise to legal liability and, on that basis, we ask all delegates to use the facilities in accordance with the above”. 

The statement’s intent is sickeningly clear, while seeking to obfuscate behind legalese; it is an instruction to trans members of our union not to use the toilets they are used to using, and to use the ‘toilets for everyone’ instead. This position is legally ignorant as well as politically cowardly and we in the Independent Left support our members continuing to use the toilets they are used to using without overzealous and bigoted interpretation of the judgement and other legislation by the PCS leadership.

Ignorant: The Building Regulations do not regulate the ongoing use of existing buildings and the Equality Act is not mandating segregation of trans members!

For a leadership intent on dressing up their approach to handling the issue of trans rights in legalese, they are either misunderstanding what the Building Regulations actually mean or they are weaponising the ignorance of others to restrict the rights of trans members. To be clear, the Building Regulations in England apply when most ‘building work is being carried out or material changes of use (e.g. changing offices into flats) are taking place. Material alterations to an existing building can be building work, but they are only material where they would make a building not comply with the Regulations where it did so before, or where it would comply less than it already did (Part 2 of BR 2010 as amended)’.

So what does this mean here? It means the requirements on the owners of Brighton Centre (a building built in 1977 and last renovated in 2012) was to meet the regulations at the time those renovations took place. Part T of the Building Regulations, requiring same-sex facilities, was only inserted in October 2024, and is therefore in no way relevant for the provision of toilets for ADC 2025 today. In fact, the Government’s own statutory guidance on Part T, Approved Document T, makes this point abundantly clear: “The new requirement and associated guidance will not apply in relation to building work on a particular building where a building notice, an initial notice or an application for building control approval with full plans, has been given to the relevant authority in respect of that building before the day the new regulations come into force, 1 October 2024, and either the building work to which it relates: a. has started and is sufficiently progressed before that day; or b. is started and is sufficiently progressed within the period of six months beginning on that day. […]

Management of premises 0.6 The Building Regulations do not impose any requirements on the management of a building, but they do assume that a building will be properly managed. This includes, for example, assuring the maintenance of building services, keeping handles and locks in good working order, cleaning of sanitary ware, surfaces and floors, plus emptying disposal bins and restocking soap dispensers and toilet paper”.

The Building Regulations 2010 are therefore in no way an appropriate fig leaf for the General Secretary and President to hide behind when aiming to force trans members to use separate ‘third space’ toilets. It is plain ignorance of the law.

Even when one looks at the Equality Act 2010 itself, the current interpretation being put forward by the bureaucratic LU leadership clique of PCS is one that is very purposefully restrictive in nature when it does not need to be so. Section 29 and paragraphs 26-28 of Schedule 3 of the Equality Act 2010 read together with the restrictive interpretation of the Supreme Court judgment are a step backwards for trans rights. But while the judgement does create circumstances in which a service provider may legally provide different services based on sex and exclude trans people of that gender from that service, it does not mandate this and we should seek to be pushing back, not leaning in. 

“A trans woman with a GRC who presents fully as a woman may feel she is more likely to prompt objections from other users if she enters the men’s changing room or other facilities than if she uses the women’s changing room or facilities. But in facing that dilemma she is in the same position as a trans woman without a GRC. Although such trans women may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and   dignity of the other women users, the Scottish Ministers do not suggest that a trans woman without a GRC is legally entitled to do so”.

A reasonable plain reading of the judgement taken as whole is that it represents a sordid and significant step backwards in the legal rights of trans comrades but it does not mandate their segregation on a day to day basis in the way the PCS leadership is suggesting should happen. The judgment unfortunately creates a hostile environment for unscrupulous attacks against our trans members but, as we quote above, even the judgement itself recognises that many trans women (without GRCs) “may in practice choose to use female-only facilities in a way which does not in fact compromise the privacy and dignity of the other women users” in their day to day lives and while they highlight the Scottish Government does not argue they would be “legally entitled” to said space (read: able to bring a legal claim if excluded from such a space by an unscrupulous service provider) it demonstrably should not be the trade union itself acting as the unscrupulous service provider. This is exactly what we need to stand alongside our trans comrades to prevent, inside and outside PCS.

The leadership state that the Supreme Court is the ‘highest court in the land’ but given the interaction between the restrictive view of the judgement and Article 8 of the European Convention of Human Rights on the right to privacy and a family life without undue interference from the state, it is clearly not the ‘final’ court that will have a say on these matters. We should seek to defend trans members and their human rights in the first instance and the approach taken by PCS, seemingly following the EHRC interim guidance which it ostensibly criticised, is a choice to be opposed in the interests of our members. 

Cowardly: PCS should be the progressive force encouraging change, not being the most reactionary force in how it acts!

The law has always been, and will always be, a moving target when it comes to trade union solidarity. When Section 28 of the Local Government Act 1988 “prohibited local authorities from ‘intentional promotion of homosexuality or publication of material with the intention of promoting homosexuality”, as well as “promotion of teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship” many in the trade union movement were rightly part of the long campaign for its repeal. While thankfully, no prosecutions of teachers ever came forward, progressive union activists did everything they could to force a reversal of the contemptuous laws and were finally successful in 2003. 

Notably for today, the National Archives summary states “Teachers’ unions created guidance to help schools navigate the Act, as did LGBTQ+ and civil rights organisations like Liberty, who also issued guidance for voluntary organisations and local authorities” and such pressure forced Government guidance to clarify “It will not prevent the objective discussion of homosexuality in the classroom, nor the counselling of pupils concerned about their sexuality” after it was introduced.

While the Section 28 legislation was pernicious, strong opposition helping progressive teachers navigate the situation with support from their unions was crucial to it being undermined in practice, from its inception. We need the same sort of leadership to support our trans members today when they are under attack, not shameful passive acceptance of the erosion of their rights.

Unfortunately, we are in a position where LU and its cowardly leadership cadre, including parts of PCS’ Full Time Officer complement, narrowly but fundamentally see defending trans members as a potential legal liability to be managed rather than a fight for liberation of which defending their rights in the legal system will undoubtedly play a part. Their financial interests, as well-paid employees of the union, comes before the Objects of the union itself to “Provide financial and other help to members… who are in need” and to “To promote equality for all… by opposing actively, all forms of harassment, prejudice and unfair treatment whether on the grounds of sex, race, ethnic or national origin, religion, colour, class, caring responsibilities, marital status, sexuality, disability, age or other status or personal characteristic”.

It is therefore completely, utterly and totally inappropriate to seek to push the perceived liability for living their lives as normal onto our trans members in the way the statement from the leadership seeks to do: Asking them what they can do for their (well-paid) union (FTOs) by agreeing to this sick segregationist interpretation of the law, rather than asking them what the union can do to protect their human rights and most basic liberties, to be able to use a bathroom without interrogation over biological essentialist views of gender and biased social norms of gender presentation, or a right-wing media-induced moral panic over suspicion of predatory behaviour.

We must look at this advice sent from the PCS leadership and ask ourselves, is this a union seeking to help our members navigate the sad implications of the judgement with solidarity, at the forefront of the movement for better trans and non-binary rights? Is this a union on the right side of history? Or does it demonstrate cowardice, not looking to defend members but instead take the most reactionary view of the judgement at the first opportunity?

The PCS Independent Left is clear: we must support trans rights and make our movement be at the front of the pushback necessary. We will never back down. We know right from wrong. We know an injury to one is an injury to all. We will steadfastly support all trans and non-binary members.