An evolving outlook.
The Law Society has amended its template policy on gender identity to acknowledge that single sex spaces in law firms may be permissible, and to remove the automatic right for people to use the toilets and changing rooms of their choice.
The template is intended to be adopted by law firms so they can assist staff who wish to "transition or change their gender expression".
It originally informed staff going public with their new ‘gender identity’ that they could "choose the facilities that make you feel most comfortable", and that "You are free to change your mind at any time".
Feminist lawyers told RollOnFriday that by granting staff the right to pick their toilets and changing rooms, the policy effectively abolished single sex spaces within firms which adopted it.
However, that section of the policy has been deleted, and the replacement clause promises only that "We will discuss with you which toilet and changing facilities make you feel most comfortable and you would like to use".
The new template also notes that it "may be permissible" to exclude a trans person from the facilities which match their gender identity, "but only where it is justified as a proportionate means of achieving a legitimate aim", mirroring wording in the Equality Act 2010.
A spokesperson for the Law Society told RollOnFriday that, "In most workplaces, trans and non-binary staff should be able to use toilets or facilities they feel most comfortable with and which match the gender in which they identify. There may be some limited circumstances - and only where it is a proportionate means of achieving a legitimate aim – where this is not possible. We recognise that employers should take responsibility for managing the communication with other staff as well".
Any law firm adopting the original template would have carried across a declaration that it "is recognised" that the Equality Act and the Gender Recognition Act 2004 "fall short in protecting and assisting the trans and non-binary community" and that the firm "intends to exceed the requirements of these statutes and celebrate all gender identities and expressions".
The assertion that current legislation is inadequate has been excised from the new template, reflecting some lawyers' concerns that exceeding the requirements of legislation in favour of one group could mean encroaching on the protection it affords to others.
The template was overhauled in June after an Employment Appeal Tribunal ruled in favour of think tank worker Maya Forstater that the 'gender critical' belief that sex is binary and people cannot change their sex is protected under the Equality Act 2010, as is the opposing belief in 'gender identity'.
The Law Society's spokesperson said that "All our guidance is subject to review from time to time and in this case we have looked again at our template and adjusted the wording to mirror the EHRC’s Code of Practice which we reference".
However, a lawyer who requested anonymity told RollOnFriday that the Law Society's template still required work following the Forstater judgment.
"The general tenor of the policy in recognising that transitioning staff need to be treated with dignity and respect, and given every reasonable assistance in their transition, is laudable", said the lawyer.
"This does not however require the full acceptance of gender identity theory which is evident in the policy", they said. "In failing to reflect that many people do not share that belief (and are protected in law from discrimination for so doing), the policy risks causing unlawful discrimination by any firm or lawyer that adopts it."
The Law Society's spokesperson said, "Trans people are some of the most marginalised in our society. The Law Society is committed to creating workplaces that have diversity and inclusion at their heart".