Samson and Delilah

Update 320 Toilets Special!

Whoa, this is a really bumper one, dear readers, and, if I say so myself, a bit of a tour de force!! But let me know what you think, of course!

Thanks to a reader for the suggestion for No 4 in the Leading Female Season and we have Hedy Lamarr. Probably her most famous role was as Delilah. I am sure you all know the story but, just in case, the film depicts the biblical story of Samson, a strongman whose secret lies in his uncut hair, and his love for Delilah, the woman who seduces him, discovers his secret, and then betrays him to the Philistines. Why, why, why, Delilah ( more of that later).

Victor Mature is Samson.

Single Sex Toilets

Thanks to JL in the Good News Supplement on the Glinner Update for referring us to the recent Scottish tribunal judgment in Abbas v ISS Facility Services: https://grahamlinehan.substack.com/p/the-good-news-supplement-monday-12th

Ms Abbas won her case for direct sex discrimination under the Equality Act 2010 against the company she works for because the toilet facilities provided were not adequate for women. The judgment is here:

https://assets.publishing.service.gov.uk/media/65844ea7ed3c3400133bfd6c/8000146.2023_-_Miss_V_Abbas_v_ISS_Facilities_Services_Limited_-_Judgment.pdf

This is a major result and, after the Endpiece below, I supply extracts from the judgment. Any woman who wants to challenge her employer on this kind of basis might like to copy and paste these extracts in any submission she makes. I am also happy to attempt to answer any queries. If you subscribe for free to this substack you will get my direct e-mail address.

Since this is an employment case it does not apply directly to schools.

Clause 4 of the School Premises (England) Regulations 2012 states:

4.—(1) Subject to paragraph (3), suitable toilet and washing facilities must be provided for the sole use of pupils.

(2) Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time.

(3) Where separate facilities are provided under paragraph (1) for pupils who are disabled, they may also be used by other pupils, teachers and others employed at the school, and visitors, whether or not they are disabled.

(4) Suitable changing accommodation and showers must be provided for pupils aged 11 years or over at the start of the school year who receive physical education.

Some schools may be in breach of these regulations. In other schools there may be a problem because, though the urinals have been removed in the ‘gender neutral toilets’ the wash hand basins are not within the cubicle. In any event, even if they are within the cubicle, unless it is an entirely self-contained cubicle, boys still have access.

However I don’t see why a girl could not take a direct sex discrimination claim along the lines of that in the case taken by Ms Abbas. All thoughts gratefully received.

For full, expert advice on this please go to Safe Schools Alliance:

https://safeschoolsallianceuk.net/

And see the video by Isla Mac in my last update:

https://dustymasterson.substack.com/p/educating-rita

In Ms Abbas’ case reliance was placed on a 2022 judgment called Earl Shilton Town Council v Miller. I hope to discuss that case in a future update.

Well done, Ms Abbas!!

Title IX

Reem Alsalem, the United Nations Special Rapporteur on violence against women and girls has written to the US Government by letter of 21 December 2023. She addresses major concerns about proposed amendments to Title IX as it relates to women’s and girls’ sports in the USA. I quote major pieces from the letter here:

Excellency, I have the honour to address you in my capacity as Special Rapporteur on violence against women and girls, its causes and consequences, pursuant to Human Rights Council resolution 50/7. In this connection, I would like to bring to the attention of your Excellency’s Government information I have received regarding the proposed rule changes to the federal civil rights law that was enacted as part of the Education Amendments of 1972, commonly known as Title IX, and the potential negative impact that such revisions could have on the participation of most women and girls in sports. According to the information received: In 1972, the U.S. Congress passed landmark legislation, known as title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), to eradicate sex discrimination against women in education and ensure that girls could enjoy the same educational opportunities as their male counterparts. The legislation notes that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”.

She continues:

In June 2022, the U.S. Department of Education released proposed changes to Title IX Regulations for public comment. The proposed amendments were cited as restoring crucial protection for students and ensuring that all students receive appropriate support as needed to access equal educational opportunities, and that school procedures for investigating and resolving complaints of sex discrimination, including sex-based harassment and sexual violence are guaranteed. The proposed regulations stated aim is to advance educational equity and opportunity for women and girls across the U.S. On 6 April 2023, the U.S. Department of Education issued separate Proposed Changes to its Title IX Regulations on Students’ Eligibility for Athletic Teams, 5 noting that the aim of the proposed change is to “provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity, while giving schools the flexibility to develop their own participation policies.” The proposed amendment would renumber section 106.41(b) as § 106.41(b)(1) and create a new paragraph numbered § 106.41(b)(2). The new subsection would clarify that sex-based criteria determining athletic eligibility for each sport, level of competition and grade or education level, must: 1) be substantially related to the achievement of an important educational objective, and 2) minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied. According to the current Title IX, “sex-based criteria” would include any requirements that students submit to physical or medical examination or provide documentation of their sex “assigned” at birth, such as a birth certificate, passport, or driver’s license. Schools would need to demonstrate that they would be implementing the “sex-based criteria” to achieve an “important educational objective.” The proposed rule affirms that schools can offer separate men’s and boys' and women's and girls' sports teams in certain circumstances and notes that schools would have to assess the ages of students and the level of the competition, as well as the nature of the sport itself.

She then goes on to explain in great detail precisely why men and boys have enormous advantages over women and girls in sport and why allowing (biological) men and boys into women’s and girls’ sport would be totally unfair.

She concludes:

The Right to safety and dignity for women and girls involved in sports

According to the information received, there is a grave concern that the amendments to Title IX would institute shared spaces in sports locker rooms and restrooms that seriously undermines the right to dignity, privacy, and a sense of safety. Such risks would be especially serious for - although not limited to - women and girls who are menstruating. In particular, compelling women and girls to share restrooms, locker rooms and intimate spaces with males, would very likely lead to feelings of anxiety, stress, humiliation, and embarrassment, resulting in women and girls choosing to avoid these facilities altogether. It would also increase the risk of sexual harassment, voyeurism, and physical and sexual attacks in unisex locker rooms. Furthermore, the amendments to Title IX would increase the risk of female athletes sustaining injuries as a result of competing with athletes born male. The fear of this kind of physical injury can, and does, lead to self-exclusion by women and girls. Moreover, allowing athletes born male to, for example, box, wrestle, pin, shove, or strike at female athletes on a playing field, regardless of the power differences based on sex, is likely to lead to the toleration of such behaviour off the pitch.

Potential negative consequences on the right of women and girls to participate fully and equally in society

According to information received, there is concern that the amendments to Title IX would further undermine the full and equal participation of women and girls in society, including cultural, and educational life. Globally, the regular participation of women and girls in physical activities and in many athletic events, remains lower than that of men. The reasons for the low participation of women are multifactorial and some include socialization, lower incentives and limited access to training facilities and resources at the elite, sub-elite and recreational levels in schools, colleges and professional leagues. Other reasons include social and cultural prohibitions on female sporting participation; less provision of suitable facilities for women and girls; the greater likelihood of caring responsibilities as an obstacle to personal pursuits for adult women; the challenge of managing the menstrual cycle. Furthermore, financial rewards are much less, and career opportunities are fewer.

What a great letter!! Shame on the US Government!

The full letter is here and thanks to Feminist Legal Clinic for alerting me to it:

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=28673

Any comments from my American readers would be greatly appreciated.

Transgender Schools Guidance

I reported on this here:

https://dustymasterson.substack.com/p/its-a-wonderful-life-part-1

Thanks to a wonderful reader for letting me know that Transgender Trend have done their response to this - see here:

https://www.transgendertrend.com/gender-questioning-children-consultation-response/

We have until 12 March to put in our responses. Please try and get a response in. I am still working on mine!! See also the Sex Matters response:

https://sex-matters.org/posts/updates/responding-to-the-schools-guidance-consultation/

Additionally Isla Mac’s videos are here:

https://dustymasterson.substack.com/p/farewell-my-lovely-062

99.9% Of Women

A researcher writes:

I was terribly grateful to Sir Kweer Smarmer for bringing to my attention that 0.1% of women have penises. I was shocked but he is a Knight Of The Realm so obviously to be trusted. I thought I would assist Sir Kweer by getting together some research for him. Unfortunately, I have had to pause the research since I am currently suffering from concussion after going around the streets of my locality asking random women if they had a penis. My preliminary findings are that 100% of women are transphobic. I have now purchased a suit of armour and intend to continue my research in the near future.

Anyway…over to Kellie-Jay 😎

Milk Men

Men really should stick to delivering milk in milk floats! Here is an excellent piece by Milli Hill about this appalling story ( see also my piece on it in the last update). I recommend Milli’s substack.

Dear BBC, you've got your facts wrong about 'trans milk'

False claims across the media show the nonsense that ensues when you abandon plain language in favour of ideological capture ( 20 February)

Last night an interview took place on BBC News with Kate Luxion about the current news story that ‘trans women’s milk is just as good for babies’, according to an NHS trust. In the interview Luxion, who is a researcher at UCL and trainee lactation consultant, claimed that milk from a trans woman was of equivalent or better quality than milk from a biological female.

There is a lot to unpick here, but before I go any further, a note about language. In this post, I will be using sex based language. If I say ‘woman’, I will mean biological female, and if I say ‘man’, I will mean biological male. Aside from that intro paragraph above, I won’t be using the term ‘trans woman’. When I talk about the person producing the milk, for example, I will refer to them as a man if they are biologically male and a woman if they are biologically female.

The full piece is here:

https://millihill.substack.com/p/dear-bbc-youve-got-your-facts-wrong

Joe Rogan and Dr Phil

I managed to find a small clip of their discussion on the gender madness (if you can find more, please send me a link):

Trans Widows

This is a useful site for Trans Widows ( thanks to Feminist Legal Clinic for the recommendation):

https://www.transwidowsvoices.org/

Abolish Hate Crime

This has long been my opinion and I am glad that Andrew Doyle agrees. I am sure he will forgive me for re-printing the whole of his article on this. I do recommend his excellent new substack.

Why we should abolish “hate speech” laws

The state has no right to police our thoughts and words ( 22 February)

Since when did it become the business of the state to audit our emotions? In effect, this is precisely what is happening by means of the various “hate speech” laws that have been implemented throughout Europe in recent years. In Ireland, the imminent Criminal Justice (Incitement to Violence of Hatred and Hate Offences) Bill would represent one of the most draconian forms of hate speech legislation yet produced. And how is “hatred” defined in the Bill? The following is a direct quotation:

“hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics

So hatred means hatred. Glad we cleared that up.    

This kind of circular definition is what we have come to expect from legislators when it comes to this most nebulous of concepts. In his book Censored, Paul Coleman helpfully includes all of the existing legislation on “hatred” from across Europe and, in doing so, reveals that no two governments are able to agree on its meaning. In 2012, the European Court of Human Rights concluded that there “is no universally accepted definition of the expression ‘hate speech’” and a manual published by UNESCO in 2015 accepted that “the possibility of reaching a universally shared definition seems unlikely”. 

When it comes to the statute books, one would have thought that precision and detail would be of paramount importance. After all, we have seen how vaguely-worded legislation is wide open to exploitation. Consider, for instance, how trans rights activists are now claiming that the reference to “sex” in the Equality Act 2010 connotes a sense of “gender identity” rather than the biological designations of male and female. If the state is empowered to imprison its citizens on the basis of “hatred”, surely we need to know what that means.

Hatred, like any emotion, cannot be legislated out of existence. Will we be seeing laws against “envious speech” on the statue books? And what about codes against wrath or pride? If the government were to prohibit narcissistic speech, most of the flag-waving pronoun-declaring gender ideologues would have to be incarcerated. And while this would doubtless create a much more sane and serene society, it would also involve the obliteration of our fundamental values. 

As for “hate crimes”, there is no need for mind-reading in order to determine the appropriate punishment. If I am physically assaulted, it makes little difference to me if the assailant was motivated by homophobia. I would prefer the sentence to reflect the crime itself, not to be moderated according to speculations about the perpetrator’s private thoughts. The state should have absolutely no licence to probe inside our heads, any more than employers should insist on compulsory “unconscious bias training”. In a free society, we are entitled to think and feel as we see fit. And so long as that does not interfere with the liberties of others, that includes the right to hate.

But even if one were to accept the premise that the state must crack down on hateful thoughts – which I most assuredly do not – hate speech legislation is wholly ineffective. Censorship of hateful ideas does not cause them to disappear; it drives them underground, where they can fester unchallenged. Moreover, hate speech laws are easily weaponised by activists seeking to silence their political opponents.  

For example, in the UK we have seen people arrested for “misgendering”; that is to say, for accurately identifying the sex of another person. The journalist Caroline Farrow was investigated by police for six months after an appearance on Good Morning Britain. According to a complainant, Farrow had referred to another contributor’s female-identifying child with a male pronoun during a conversation that took place off-air. And although such instances have not led to convictions, we all know that the process is the punishment. 

As one who has received my fair share of online abuse, I understand that free speech has its downsides. But I choose to ignore those of the obnoxious and hateful ilk rather than call for them to be censored. The price we pay for living in a free society is that unpleasant people are going to say unpleasant things. But their right to do so is precisely the same right that allows us to counter them. If we attempt to silence even our most abusive critics, we are essentially surrendering our principles at their behest. 

No doubt the trans-identifying individual who was described as a “faggot with tits” in a recent case in Spain did not relish the experience. But it should concern us all that the state has intervened and sentenced the woman [ I understand that it has subsequently been clarified that this was, in fact, a trans-identifying man] who posted the offending words to six months in prison, suspended on condition of the payment of a €3,850 fine. In addition, she has been banned from employment in teaching and sports for three and a half years. This is the very definition of authoritarian overreach.

Those who are sceptical of gender identity ideology are particularly susceptible to the misapplication of hate speech laws, and there is no way of knowing which other beliefs will eventually be criminalised. Once a state has outlawed “hatred” and failed to define it, the law becomes a cudgel to beat anyone who holds heterodox points of view. Who is to say that a future government might not deem it “hateful” to criticise its policies? What starts with the chilling of free speech ends with the criminalisation of dissent. 

And this would seem to be where Ireland is heading. Last year, the Irish Green Party Senator Pauline O’Reilly made no effort to disguise the authoritarian nature of the new Bill. “We are restricting freedom,” she said, “but we’re doing it for the common good”. Hasn’t every tyrant in history made an identical claim?

In her speech, O’Reilly invoked the notion of “safety” to justify state censorship. “If your views on other people’s identities go to make their lives unsafe, insecure and cause them such deep discomfort that they cannot live in peace,” she said, “then I believe it is our job as legislators to restrict those freedoms.” It is a common tactic of activists to claim that certain opinions make them feel “unsafe” as a means to provoke a censorial response, either from employers or from the state. This is linguistic sleight-of-hand, and the strategy has been remarkably effective. 

The Irish hate speech bill goes further than most of its equivalents in other European countries. It will give the state the right to prosecute those who cause offence under the catch-all of “inciting hatred”, and those found guilty could face up to five years in prison. Even more worryingly, a citizen can be jailed for two years simply if they “prepare or possess” material that could potentially “incite hatred”. And so if you have a gender-critical meme on your iPhone, that could be sufficient to see you jailed. 

In the UK, hate speech laws exist in the form of the Public Order Act 1986 and the Communications Act 2003.  Three thousand people are arrested each year in the UK for comments posted online that have been deemed offensive, and in some cases have even been imprisoned for jokes. If we are to tackle this problem, we might start by repealing Section 127 of the Communications Act, which criminalises online speech that can be deemed “grossly offensive”. Of course, no attempt is made to define “grossly offensive” in the legislation, and so anyone could be vulnerable. 

In Scotland, the situation is even graver. When First Minister Humza Yousaf was Justice Secretary, he was instrumental in the passing of the Hate Crime and Public Order (Scotland) Act. Disturbingly, these new laws can see citizens prosecuted for words they have uttered in the privacy of their own homes. I’m reminded of a speech by William Pitt the Elder, delivered in the House of Commons in March 1763:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter. All his force dares not cross the threshold of the ruined tenement.”

Evidently, these sentiments would not be echoed by the SNP. 

Given that “hatred” and “offence” are entirely subjective concepts, we should be resisting any attempt to codify in law restrictions against them. No two figures of authority will interpret these terms in the same way and, as human beings with frailties and biases, they will doubtless be tempted to wield such laws against their detractors. If the state is willing to dispense with our right to free expression, there can be no guarantees for any of us. Hate speech laws are an affront to human liberty. It’s time to ditch them for good. 

Great piece! I previously analysed the Irish Bill here:

https://dustymasterson.substack.com/p/thought-crime-irish-style

Critical Perspectives on Gender and Sex in Health Care

Thanks to a wonderful reader for alerting me to this conference. Livestream tickets are available I believe:

Thought Criminal!

JL reported on a 90 year-old volunteer for the US National MS Society being sacked for querying the use of pronouns. I think that the long overdue apology is a bit late in the day really! All thoughts gratefully received.

Bethan Sexton for The Daily Mail ( MS Society U-turns and issues grovelling apology to fired 90-year-old volunteer who they forced to step down after she asked 'what pronouns meant' 20 February) reports:

• Fran Itkoff received an apology from the National Multiple Sclerosis Society

• The 90-year-old volunteer was forced to step down after she asked about pronouns, 'breaching' diversity and inclusion policies

• NMSS admitted it 'fell short' but claimed it acted with best intentions

The National MS Society has apologized to a 90-year-old volunteer they forced to step down for 'breaching its diversity and inclusion policy' after she asked what pronouns were.

Fran Itkoff had served the non-profit for multiple sclerosis patients for 60 years, with her late husband running the Long Beach Lakewood chapter prior to his death.

She was left stunned when her bosses fired her on January 19 following an exchange with a colleague who asked her to use her pronouns in email signatures.

The non-profit doubled down on its decision, saying it acted with the 'best of intentions' despite a furious backlash where supporters threatened to withhold their funds.

But, on Wednesday, the organization announced it was rolling back on its stance, admitting it 'fell short' and offering a grovelling apology to Itkoff. 

The full article is here:

https://www.msn.com/en-gb/news/world/ms-society-u-turns-and-issues-groveling-apology-to-fired-90-year-old-volunteer-who-they-forced-to-step-down-after-she-asked-what-pronouns-meant/ar-BB1iFmGG?ocid=msedgdhp&pc=U531&cvid=eb20ee1882254917bccebc846676b9ff&ei=21

Women’s Bathing

A row has erupted over a proposal to ban trans identifying men from one of Britain's most famous swimming pools after the women pushing the move were told by their own committee it could be illegal. I don’t see how this would be illegal. The Equality Act 2010 allows service providers and employers to offer facilities to women and men separately or to offer them for one sex only, wherever this is a “proportionate means of achieving a legitimate aim”. I don't see why this wouldn't be a 'legitimate aim'?

John James in The Mail Online ( Women wanting to ban trans swimmers from Hampstead's female-only bathing pond are told by their own committee that the move could be illegal 22 February) reports:

A row has erupted over a proposal to ban trans women from one of Britain's most famous swimming pools after the women pushing the move were told by their own committee it could be illegal. 

The Kenwood Ladies Pond has been open to transgender women [ Dusty - MEN!!] since 2010, when the City of London Corporation (CoLC) - responsible for running the facility - adopted a new gender identity policy.

There are already men-only and mixed swimming lakes in the area. 

The pond has around 1,000 members and is frequented by celebrities including Kate Moss, Helena Bonham-Carter and Emma Thompson, comedian Rhona Cameron and author Esther Freud. 

Now, the Kenwood Ladies Pond Association (KLPA), which has around 1,000 members has been asked to update its constitution around the word 'woman' at its annual general meeting. 

The proposed resolution urges that the word woman be 'interpreted literally and biologically so that only those born female in sex can use the pond'.

The resolution adds that men who call themselves women, see themselves as women, claim to be women, identify as women, or wish to be women 'are to be excluded'.

However, there has been pushback from the group's own members who state that any such proposal could be 'unlawful.'  

Pauline Latchem and Beth Feresten, co-chairs of the KLPA, said in a statement: 'The KLPA management committee has appended to the AGM papers a formal response explaining that it is in receipt of legal opinion that the proposal is likely to be unlawful and that, pending further legal advice, the amendment may be removed from consideration at the AGM.

'In addition, the committee officers have reiterated that all women are welcome to join the KLPA and recorded their opinion that it would be irresponsible and contrary to good governance to recommend to the membership a proposal that is likely to be unlawful as well as impossible to enforce.'

The full article is here:

https://www.dailymail.co.uk/news/article-13113185/Women-wanting-ban-trans-swimmers-Hampsteads-female-bathing-pond-told-committee-illegal.html

Mexico Gender Madness

Thanks to wonderful Reduxx for this shocking report:

Mexican Politician Convicted of “Gendered Violence” After Calling Trans Lawmaker A “Man” (17 February)

By Nuria Muíña García

[L] Deputy Castell holds a sign in the Mexican Congress showing a trans-identified male figure pushing a female figure out of a washroom sign. The image is captioned "Speechless!"

The Electoral Tribunal of the Judiciary of Mexico (TEPJF) has convicted Congresswoman Teresa Castell of “gendered violence” towards a trans-identified male politician, Salma Luévano, for referring to him as a “man.” This incident shortly follows news that a former Congressman had similarly been convicted for the exact same “crime” against Luévano.

Castell’s incident dates back to March 2023, when Luévano, a Deputy with the governing Morena Party, reported her to the National Electoral Institute for referring to him as “a man” on YouTube and X (formerly Twitter). Two months later, the Electoral Tribunal issued a ruling stating that Castell had been found guilty of “political gendered violence,” a conviction which was confirmed by unanimous vote this past week.

The ruling states that Castell’s views constituted “political violence against women because of gender due to several statements made on a YouTube channel … and several posts made on [her] Twitter profile … against trans women and a federal deputy.”

As punishment, Castell must take a course on political violence, both against women because of gender and against LGBTTTIQA+ people [ Dusty - three Ts!!!!]. She must also extend a public apology and publish an excerpt of the sentence on her X account.

In addition, she will be catalogued in the National Registry of Persons Sanctioned in Political Matters against Women for Gender Reasons of the National Electoral Institute, a registry that was created to protect female politicians from political violence. Her sentence will also be recorded in the Catalogue of Subjects Sanctioned in Special Sanctioning Proceedings on the website of the Specialized Chamber of the Electoral Tribunal.

Wow, it really is bad in Mexico!! Wish I had some Mexican readers!

The full article is here:

https://reduxx.info/mexican-politicians-convicted-of-gendered-violence-after-calling-trans-lawmaker-a-man/

I previously reported on the Mexican Congressman who is mentioned in the piece, Rodrigo Iván Cortés, here:

https://dustymasterson.substack.com/p/the-cuckoo-clock

Endpiece

A treble Endpiece.

Firstly, the mention (by me) of Milk Men lead me straight to Monty Python (yet again):

Secondly, (kind of) on the subject of Samson and Delilah, Welsh rugby fans were recently told not to sing the Tom Jones hit Delilah since the song’s lyrics included reference to a woman being murdered by her jealous partner. Thanks for telling us that. You know what’s coming next, dear readers 😎

OMG, now I need Tom himself ( don’t you?):

Talking of rugby, I am about to be interrupted by the Six Nations on Saturday when my mate and me will be ensconced in an Irish pub in Brum. So the next update is likely to be on Sunday.

Don’t forget the extracts from the Abbas judgment below.

If you like this update, please send to a friend. Until next time, Terven. This isn’t over yet! Please subscribe for free, like and comment.

Altogether now: why, why, why, Delilah…

Abbas v ISS Facility Services

The decision:

1. The claimant’s claim of direct sex discrimination succeeds.

2. The claimant’s sexual harassment claim as it relates to an incident on 27 March 2022 succeeds.

3. The claimant’s remaining claims of harassment and her claims for unauthorised deduction from wages fail and are dismissed.

4. The respondent shall pay to the claimant the sum of FIFTEEN THOUSAND POUNDS (£15,000) as compensation for injury to feelings. Interest on this award shall be paid at the rate of eight per cent per annum. This shall run from 14 February 2019, the date on which the claimant commenced employment and the direct discrimination commenced, until the date of this judgment.

5. The respondent shall pay to the claimant the sum of SEVEN HUNDRED AND SIXTEEN POUNDS AND TEN PENCE (£716.10) as compensation for loss of earnings. Interest at the rate of eight per cent per annum is payable on this award from 7 October 2021, being the midpoint from the date of the discriminatory act and ending on the date of this judgment.

The background:

16. The respondent is engaged in the provision of facilities management services. It is part of a global group of companies employing more than 500,000 people. It employs tens of thousands of people in the UK. One of its UK clients is Virgin Media O2 for whom it provides management services throughout the UK. One of its sites is at Tannochside Park in Uddingston. The site operates as a data centre.

17. The claimant commenced employment on 14 February 2019. She is based at Tannochside Park. Her employment is ongoing. Her role was and is Security Officer. The role involves security and reception duties. The site has a small number of dedicated employees. Other engineers and 20 contractors visit from time to time.

The facts re toilet facilities:

23. The toilet facilities at the site were a washroom for men and an accessible toilet. The men’s washroom contained two urinals, two wash hand basins and one cubicle. The accessible toilet was a single cubicle. There was no separate female washroom. The accessible toilet contained a sanitary bin.

24. On commencing employment, the claimant asked her then manager, Mr Morrall, what she should do regarding toilet facilities. He responded to the effect that she could use any one.

25. During her probationary period, the claimant also worked at other sites including an office building and a college. Those had separate facilities for women. She began to verbally question the absence of women’s facilities during that period.

26. In practice, the claimant was encouraged to use the accessible toilet and that is what she chose to do. She had a number of concerns about the toilet. First, whilst it was lockable from the inside, the lock was loose and it could be opened from the outside with a coin. Secondly, there was no sign on the toilet to suggest that it was also a designated toilet for women and, thirdly, men routinely used the toilet. Before using the toilet, the claimant typically had to clean it before sitting down.

27. The claimant raised her concerns almost weekly when her manager visited the site. He routinely advised the claimant that he would “sort out” the issue.

28. In addition to raising the matter verbally with her manager, the claimant raised concerns with a health & safety employee of the respondent who was conducting a survey of the site. The claimant complained about the absence of a facility for women, and a failure to empty the sanitary bin. The failure to empty the bin was a repeated concern for the claimant.

29. The claimant first put her concerns in writing by email of 27 September 2019 to Mr Morrall. She described having found the accessible toilet in an unhygienic condition with urine traces on the toilet seat. She attached photographs.

30. She referred to her previous complaints including her complaint to the health & safety surveyor. In addition to the unhygienic condition of the facility, she questioned the absence of a toilet for women and the use of the accessible toilet by men (whom she did not understand to be disabled).

31. Mr Morrall responded by email of 30 September 2019. He undertook to speak to the building manager, Mr Atherton, at the earliest opportunity about making some physical alterations to the toilet including installing a locking mechanism (if practicable). He also undertook to speak to Mr Dunn about what he described as “short term local arrangements” including signage to mitigate against individuals leaving the toilet in an unsanitary state.

32. By email of 1 October 2019 to Mr Atherton, Mr Morrall asked for two points to be considered. First, making the accessible toilet a “disabled/ladies’ toilet”, and secondly, obtaining a quote to install a locking capability on the door so that it could be secured externally.

33. Mr Atherton responded later that day to the effect that he was not going to change the lock. He stated that “… if they don’t follow the rules, I’ll ask them to supply their own portaloo and they will not be allowed to use our facilities.” By “they”, Mr Atherton was referring to external contractors and visitors to the site.

34. He also asked for a sign to be printed off and added to the door of the accessible toilet. The sign contained the word “ladies” and symbols denoting both accessible and women’s toilet facilities.

35. Mr Dunn printed out the sign and attached it to the door with Sellotape. On 10 occasion, the claimant found it on the floor. She would pick it up and re-attach it to the door.

36. By email of 9 November 2019, the claimant again raised concerns with Mr Morrall. Again, she attached photographs of the facility which described as being a “mess”. She stated that only two men had been on site that day. She stated “People do not respect lady and her privacey" [sic].

37. By email of 16 November 2019 from Mr Morrall to the claimant, Mr Morrall advised that the accessible toilet would be locked and only unlocked for “females/disabled individuals”. On 17 November 2019, he sent an email to the generic Tannochside security email address to the effect that the “Ladies/Disabled Toilet” would be locked and would be opened only upon request. He stated: “This should significantly reduce the issue.” No external lock was fitted at that time. This did not take place until February 2023.

38. By email of 4 May 2020, the claimant again raised concerns with Mr Morrall. In the context of a complaint about other things, the claimant referred to the absence of a washroom for women. She referred to having asked many times for the creation of a washroom for women but, she stated, “No one care” [sic]. She again referred to male staff using the toilet and leaving it in an unsanitary state. She also referred to male staff having broken the seat.

39. The claimant again discussed the matter with Mr Morrall. He again assured the claimant that he would look into the matter. The arrangements remained as before.

40. The claimant raised a grievance on 27 March 2022 alleging sexual harassment (as more fully set out below). As part of the grievance, the claimant made reference to the absence of a women’s toilet, and the fact that she was required to use the accessible toilet which she described as being unclean. She referred to men still using it and making a mess such that she needed to clean it before she could use it.

41. As part of the grievance outcome dated 20 May 2022, the hearer, Ms Gwen Mackenzie, recommended that an instruction be issued to site that access to the facility be granted only by key and not through any other means.

42. The claimant appealed against the grievance outcome. In relation to the issue of toilet facilities, in the grievance outcome letter (dated 21 October 15 2022) the hearer of the appeal, Mr Atherton, stated: “I agree with the original note from [Ms Mackenzie] that there is no evidence of individuals utilising the toilet in a way to bully or harass you.” He went on to say: “I will also ensure a keyed lock is fitted to the toilet of which the key will remain with security to limit its use.” As noted above, this was not implemented until February 2023.

43. By email of 25 January 2023, the claimant emailed senior members of the respondent, copying her then manager, Mr Jonathon Williams. The claimant was at that time signed off from work. In the email, she repeated her concerns about the absence of a female facility, the use by men of the accessible facility and what she described as men “abusing” the facility such that she had to clean it before use.

44. By email of 30 January 2023, Mr Williams wrote to the claimant. He confirmed that a new lock had been fitted on the accessible toilet door with a key held by security. He stated that he had been assured that the lock could not be opened from the exterior side without the key. He also referred to a planned refurbishment of the toilet areas generally within the following 4 to 6 weeks.

45. The claimant returned to work on 6 June 2023. By that time, the external key lock had been fitted and the refurbishment of the facilities had been completed. The claimant is satisfied with the current arrangements and does not pursue her direct discrimination claim in relation to the period after the installation of the key lock. Since the lock was fitted, the toilet is, in effect, only used by the claimant and any visiting females.

The law:

105. Direct discrimination arises where a person is treated less favourably than other(s) because of a protected characteristic (Section 13 EqA) including sex.

106. Direct discrimination requires consideration of whether the claimant was treated less favourably than others and whether the reason for that treatment was because of a protected characteristic.

107. The Tribunal may consider firstly whether the claimant received less favourable treatment than the appropriate comparator and then secondly whether the less favourable treatment was on discriminatory grounds. Whether the treatment is detrimental should be assessed by considering if a reasonable worker might consider it to be detrimental in all of the circumstances (Shamoon v The Chief Constable of the Royal Ulster Constabulary [2003] ICR 337).

108. The recent decision of the EAT in Earl Shilton Town Council v Miller [2023] EAT 5 deals with the provision of toilet facilities in the workplace. In the scenario of women being provided with less favourable toilet facilities than men, the EAT held that the less favourable treatment was inherently due to sex such that there was no need to consider the mental processes of the discriminator (following the principle in Regina (Coll) v Secretary of State for Justice [2017] UKSC 40).

The judgment:

135. The Tribunal was satisfied, based on its findings, that this claim should succeed. There is abundant evidence that the claimant considered the facilities available to her to be detrimental. Having regard to the circumstances, and the nature of the concerns she had, it is clear that any reasonable person might have that view. The Tribunal went on to consider whether the facilities were less favourable than those available to men. The evidence is clear. There was no facility available to women only. Men had a facility available only to them.

136. The claimant was required to share a facility designated as an accessible toilet. It was available to men (whether disabled or not) and used routinely by them. The state of the facility was routinely such that the claimant required to clean it before use. There is no evidence that men were placed in a similar position. The fact that the lock could be opened from the outside with the use of a coin (and routinely was), gave rise to concerns over privacy. The issues were compounded by the failure regularly to empty the sanitary bin provided. Those were not issues for men using their facility.

137. The inadequacy of the facilities was recognised at an early stage of the claimant’s employment by the respondent itself. At a very early stage, the suggestion of inserting a key lock was made as a means of addressing the concerns. This was recommended at various subsequent points during the claimant’s employment. It was not implemented until February 2023. It was submitted on behalf of the respondent that there was a limit as to what they could do given that it was not their building. As noted, however, the respondent had day-to-day responsibility for the facilities and was able to make necessary changes, the costs of which were reimbursed. Mr Atherton at one point identified the use of portable toliets as a potential solution open to the respondent. This was not actioned either.

138. The steps taken at an earlier stage (including fixing a paper sign with tape) were inadequate and did not resolve the underlying detrimental treatment. The problems persisted for the claimant until she went off sick in January 2023.

139. Ms Bouffé [ counsel for the Respondent] sought to distinguish the circumstances of this case from those in Miller. Whilst the two cases have similarities and differences, looking at the position in the present case in the round, the Tribunal was satisfied that less favourable treatment was clearly established. Following Miller, the Tribunal did not consider it necessary to consider the mental processes of the respondent as the treatment was inherently because of sex. Women were provided with inadequate toilet facilities in comparison with men. The facilities were inadequate for the claimant because she is a woman.