How SNP's dithering over single-sex spaces and JK Rowling's generosity could cost taxpayers dear

All these organisations are now at risk of litigation which could see extensive payouts of taxpayers’ cash to women whose rights have been denied. Rowling’s generosity is entirely in character with her robust stance in speaking up for women who have suffered discrimination because of their gender-critical views.

This latest initiative will mean that those, like NHS Fife nurse Sandie Peggie, who have lost out simply because they refused to quietly share spaces with biological men, will now be able to access funds to help them stand up to authorities who have endless sums of taxpayers’ money to defend legal cases.

READ MORE: Trans women to be banned from Scottish Parliament's female toilets after Supreme Court ruling

Serious legal consequences

It comes in the wake of the interim guidance issued by the Equality and Human Rights Commission (EHRC) in response to the Supreme Court judgment in the For Women Scotland case. That guidance makes it clear that public bodies must ensure that workplaces have single-sex toilets and changing and washing facilities should these be required.

For providers of services that are open to the public, these do not have to be provided on a single-sex basis, but a woman could have a claim for indirect sex discrimination if the only provision is mixed-sex.

Despite this interim guidance being issued more than a month ago, and having serious legal consequences, public bodies in Scotland have been slow to adjust their practices. To give just one example, my own local authority, Perth and Kinross Council, in response to a freedom of information request submitted by the Free Speech Union Scotland, has stated that individuals are permitted to access single-sex facilities that align with their self-identified gender.

This position is entirely contrary to the law as stated by the Supreme Court, and fails to provide adequate protection for female workers.

Holyrood’s swift action

One body which moved quickly, and appropriately, to ensure that the law was complied with was the Scottish Parliament itself. Earlier this month the Presiding Officer, Alison Johnstone MSP, set out an interim position in response to the court ruling, making it clear that toilets designated as male or female only are to be interpreted as meaning biological sex, whilst ensuring that there will be gender-neutral facilities available to everyone, including members of the trans community.

This ruling has now been challenged by some 17 MSPs from the SNP, Green, Liberal Democrat and Labour parties (no Scottish Conservatives were daft enough to sign up) in an open letter expressing “deep concern” about the decision, which they claim risks exposing trans and non-binary individuals to humiliation, harassment or worse.

The letter has been written on the basis of legal advice from the ironically titled Good Law Project, headed up by the one-time fox-killer Jolyon Maugham KC, currently involved in an online spat with Rowling which might well end up with him being on the wrong end of a writ for defamation.

Far better lawyers than either I or the Good Law Project have been clear that the EHRC’s interim guidance accurately interprets the Supreme Court judgment, and it is disappointing to see this group of MSPs relying upon such poor-quality legal advice.

Bizarrely, one of the signatories to the letter is Green MSP Maggie Chapman, herself a member of the Scottish Parliament Corporate Body, and therefore of the group who took the decision to issue the new “transphobic toilet rules” (sic) which are being complained about. In an unexpected twist, Ms Chapman now appears to be disagreeing with herself.

Tip of the iceberg

The more serious issue is what exactly this means for public bodies and their finances. There is the potential here for a whole series of compensation claims from female workers in local authorities, in the NHS, or in other public bodies, who have been denied their gender-based rights.

We have already seen with the Sandie Peggie case that an individual is able to challenge an NHS board which does not properly protect a woman concerned about having to share changing facilities with a biologically male trans woman. This case could be simply the tip of the iceberg with many hundreds or thousands of similar claims to follow.

Now a female prisoner is threatening to sue the Scottish Prison Service after being forced to share a cell with a transgender woman. Jane Sutherley, in jail for culpable homicide, could be in line for a payout of taxpayer funds due to the SPS adopting a policy of gender self-identification – a policy which we now know is unlawful.

Any female employee who has had to share toileting or changing facilities with a biological male identifying as a woman, whether or not that individual holds a gender recognition certificate, could potentially have a compensation claim. And any public body not moving immediately to fully implement the EHRC interim guidance puts itself at risk from a flood of litigation.

JK Rowling’s generosity means that any woman in that position will not lack the resources necessary to take a legal case. The cost to the public purse, both in terms of legal fees in defending any such actions and then in potential compensation payouts, could be enormous. The lack of awareness of the risks here – and the apparent absence of any sense of urgency – from both the Scottish Government and public bodies is quite staggering.

For years, they bowed to the demands from a tiny group of vocal trans rights activists. It is now essential that they stop their foot-dragging in terms of implementing the EHRC guidance. If they do not, it is the poor taxpayer who once again will be left paying the price.