Trans civil servants will be told to use toilets based on their biological sex and colleagues could be investigated for misgendering them, according to new plans seen by Metro.
Trans staff will be forced to discuss toilet access with a manager, prompting fears they could be outed by the new rules.
Metro has obtained a copy of the government’s transgender guidance for civil servants, which ministers have refused to publish before it is finalised.
The model policy has warned civil servants they could face a misconduct probe if they repeatedly deny a colleague’s trans identity, Metro can reveal.
Staff could be investigated if they repeatedly deadname or misgender a trans colleague to ‘deny or invalidate’ their trans identity.
Trans rights groups and gender critical campaigners have both reacted in outrage to different parts of the policy, calling it discriminatory.
Public bodies have been scrambling to draw up new guidance on transgender employees after the Supreme Court ruled last year that a GRC did not make a person legally a woman in respect of single-sex spaces.
In May this year, the Cabinet Office circulated a ‘model policy’ for departments to review before implementing their own guidance to staff.
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Ministers had refused to publish this document to journalists, but Metro has obtained a copy.
Toilet policy ‘risks outing trans staff’
In the policy, marked ‘sensitive’, trans civil servants are told they ‘may not use facilities of your affirmed gender which are designated as single-sex.’
They are warned that even though they do not have to disclose if they have a GRC – which can change someone’s legal sex – it ‘does not alter your sex’ when trying to access single-sex facilities.
Instead, trans civil servants must only use facilities which are mixed sex or unisex, or opt to use toilets that match their biological sex.
The guidance, seen by Metro, makes clear that access to toilets ‘is a matter for the Department to manage and cannot be decided by you alone’.
It continues: ‘You will need to discuss the options and agree on the most suitable arrangement with your line manager.’
This is despite the rules also saying there is ‘no legal requirement for you to tell anybody’ that they are trans.
Steph Richards, CEO of advocacy group TransLucent, said the making facility access a departmental matter created a ‘coercive trap’.
She added: ‘Trans staff may be put into a position to “out themselves” to managers, directly violating their right to privacy under Article 8 of the ECHR.’
The government’s model policy also takes a different approach to other public bodies.
The Telegraph reported last month that West London NHS Trust ruled patients could use single-sex facilities based on their ‘legal gender’ and a GRC.
The Good Law Project said the civil service model policy was ‘discriminatory, and will cause immense harm to trans employees’.
Jess O’Thomson, trans rights lead at the legal campaign group, added: ‘Trans people should not be forced into third spaces, which creates stigma, and risks outing them.
‘Trans people will now be forced to explain to their colleagues why they are suddenly using different facilities, even if they have been using the appropriate toilets for decades.
‘Human rights law recognises that trans people should not be treated as a third sex.
‘The shocking failure of the government to clearly protect trans people’s human rights means that guidance like this will only keep coming, and keep forcing trans people out of ordinary life.’
Staff could be investigated for repeated misgendering
The Cabinet Office’s model rules also discuss deadnaming, when you call a trans person by their former birth name, and misgendering, when you use a trans person’s incorrect pronouns.
The policy accepts that deadnaming and misgendering can ‘happen accidentally’ or because of a ‘neurodivergent condition or memory issue’.
But civil servants are warned: ‘However, deliberate deadnaming or misgendering to deny, mock or invalidate a person’s trans identity is unacceptable and should be investigated as potential misconduct.’
Despite this, the guidance stresses that ‘some employees do not believe in trans or gender identities’, adding that belief is ‘protected’ under the Equalities Act ‘if this is a philosophical belief’.
The rules add: ‘This does not, however, mean that it is acceptable to
indiscriminately and gratuitously refer to a trans person in terms other than they would wish.’
Maya Forstater, CEO of Sex Matters, welcomed the policy on toilet access, but said the policy was still ‘shockingly biased in what it says about pronouns and “misgendering”.’
She added: ‘Most people don’t think men can be women or vice versa, they are unlikely to see this as a “philosophical belief” and may not even realise that some people think this is possible.
‘They will naturally refer to men as men and he/him, as per standard English usage.
‘Their lack of belief in gender identities is the norm, not the exception, and is also protected in law.
‘To say that it might lead to a workplace disciplinary unless the speaker is neurodivergent or has some other special excuse is unjustified and discriminatory.’
Audrey Ludwig MBE, an equality law specialist trainer and retired solicitor, said: ‘Civil servants should not face disciplinary action merely for expressing a lawful belief or for accurately referring to biological sex where this is relevant, including in discussions about single-sex services and workplaces.’
She added: ‘Any trans or misconduct policy must carefully distinguish between unlawful harassment, which depends on all the circumstances, and the legitimate exercise of protected rights to freedom of belief and expression.’
Model policy spans 29 pages
The government’s guidance for departments, which spans 29 pages, contains a host of other policies for staff and managers to follow.
Departments are still in the process of consulting on the rules they will formally adopt.
Other parts of the Cabinet Office guidelines include allowing trans employees to change their name and gender expression in IT systems from the beginning of their transition.
Trans employees could also be granted paid time off or special leave for medical appointments related to their transition, if they need to be absent when they are otherwise fit to work.
The guidance states that civil servants can also dress in accordance with their affirmed gender, while refusing this could be considered discrimination.
The rules also stress the importance of keeping a colleague’s trans identity and medical status confidential in different aspects of their work.
A Cabinet Office spokesperson told Metro: ‘Departments are expected to update their own HR policies and these are currently under review. This guidance supports them to do that and it would be inappropriate to comment while this is ongoing.
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