Single Sex Services: 10 Reasons why the Statutory Code should now be updated

The Equality and Human Rights Commission (EHRC) has released new guidance for single sex services regarding how lawfully to treat people of the opposite sex who have the protected characteristic of gender reassignment. The EHRC is mandated by the Equality Act 2010 to write guidance to help organisations understand how to apply the Act correctly.

Legal Feminist welcomes this guidance as there are problems with the EHRC’s 2011 Statutory Code (the Code). Other legal commentators, by contrast, say the new guidance is out of step with the Code. This article will set out why we consider the new guidance to be correct and why the Code needs to be updated.

In terms of accessing single sex services, we consider it fundamental that every service-user should know, at the point of access, and preferably beforehand, if spaces and services are single-sex or mixed-sex.

  • If a service provider allows people of both sexes to use a service together, it is not providing a single-sex or separate-sex service.
  • A GRC may change an individual’s state-recognised sex, but if a service-provider allows him or her to use a single-sex or separate-sex service for the opposite sex then it becomes a mixed-sex service. 

The Equality Act allows exceptions from its prohibitions of discrimination

The Act sets out exceptions where it is not unlawful to treat people of different protected characteristics differently because of those characteristics. We see this with age, where entry to certain services is restricted to particular age groups and also with sex. In both cases, the exceptions apply so long as the restriction is objectively justified as a proportionate means of achieving a legitimate aim.

Single-Sex Service Exceptions

There are three types of exception in the Equality Act (EA) which allow a service provider to provide a single-sex service. The first two apply to exclude men from women’s services and vice versa. The last allows the service-provider to continue to provide the same single-sex service despite gender reassignment. When an opposite-sex person has a Gender Recognition Certificate (GRC), the exclusion cannot operate on the basis of sex but instead on gender reassignment. The reason for this is that a GRC means that the differenting factor can no longer be sex (because legally the opposite-sex person is now considered the same sex). In all exceptions the decision to be single-sex must be objectively justified.

The 2011 EHRC Code provides nine positive examples of how service providers might successfully invoke the first two exceptions in order to ensure a single sex service. The examples demonstrate: 

  • Unconditional recognition of sexed needs, 
  • Consideration for effective and practicable service provision,
  • Consideration of intersectional protected characteristics  
  • Acceptance of intimate sexed needs in special care, supervision or attention,
  • Acceptance of female objections to male presence and contact

None of the examples require service users to justify their sexed needs or objections to the opposite sex’s presence or contact. There is no assumption that women are bigoted for their needs or objections.

Maintaining single-sex services regardless of GRC

Once a person has a GRC, the state recognises a change of legal sex status. A service provider therefore needs to apply the gender reassignment exceptions (set out in Schedule 3, part 7, para. 28 EA) in order to provide a single-sex service. These allow separate-sex services and single-sex services where objectively justified in relation to  gender reassignment. This last exception (relating to gender reassignment)  is badly handled by the Code. 

The standard of objective justification required for excluding male people with GRCs from female spaces should not be any different from those requiring exclusion of men from female spaces. The wording of the exceptions is replicated, so the exceptions should be subjected to the same test of objective justification.

The 2011 Code ought to provide user-friendly guidance to putting the Equality Act into practice but, in our view, it does not do this and makes ten errors, these are:

  1. Failure to Distinguish GRC Holders 

It fails to make a distinction between people who have the protected characteristic of gender reassignment but no GRC and those who have both. This is important because it determines whether the single sex exceptions apply on the basis of sex or gender reassignment. Remember the sex based exceptions are well explained with positive examples of how they work by the 2011 Code whereas the gender reassignment based exceptions are inadequately explained.

2. Departs from the Equality Act Explanatory Notes

The 2011 Code provides one example of a service provider’s supposed failure to use correctly the exception in relation to gender reassignment and no examples at all of proper uses of the exception. This is in striking contrast to the guidance for the other exceptions, which set out nine positive examples of situations where it will be lawful to use them.

This also contrasts with the approach in the Explanatory Notes to the EA, which give the example of a group counselling session provided to female victims of sexual assault, in which it would be permissible for organisers to prohibit a male to female transsexual person from attending as they judge that female clients may not attend. The 2011 Code adopts other examples of lawful discrimination in the Explanatory notes where they relate to sex based exceptions , but fails to use this one in relation to gender reassignment. 

3.         Impractical 

The Code states that the Paragraph 28 exception should only be used in exceptional circumstances, without describing such circumstances. This creates a higher bar than for the previous two exceptions, which relate to ordinary run-of-the-mill scenarios. There is no requirement in the statute for this exception to be treated differently from the others.

4.         Unworkable

It sets out that this exception should be applied on a “case by case” basis but does not give an example of any policy that is capable of being applied in such a way. There is nothing in the EA2010 that requires this application, in fact the case of Homer v West Yorkshire Police regarding objective justification warns against an ad hominem approach as potentially discriminatory (para 25).  

Case by case can only be workable if “case by case” relates to the particular services provided rather than the service users. as acknowledged by the Women and Equalities Select Committee.. Naomi Cunningham has already written for Legal Feminist on this  topic.

5.         Refers to out-dated case law

The Code regresses to the pre GRA 2004 position as per the A v West Yorkshire case, which we consider to rely upon the sexist criteria of being considered adequately feminine or masculine in presentation to “pass”. Relying upon unlawful sex discrimination will in turn render a single sex policy unlawful.

6.         Unrealistic

Many people detect biological sex even in those who try hard to pass.

It is impossible to base a functional policy on subjective perceptions of sex, or on someone being “indistinguishable” – and most transgender people are not. Many other service users will accurately perceive their biological sex and feel that the service provider is mistreating them in pretending to operate a single-sex service.

GRCs were intended to ensure that transsexual people who were undetectable as the opposite sex could keep their actual sex a secret. They were never intended to make others pretend that they do not perceive sex.

7.         Removes Consent

Women accessing a single-sex service are not consenting to share it with the opposite sex. Labelling a changing room “women only” but admitting any male person whom the service provider deems to “pass” is tantamount to using deception to obtain the consent of the women who use that facility. It is unacceptable that some women – in particular traumatised women and some religious women – will self-exclude from such facilities. 

8.         Encourages harassment

The EHRC Code suggests that service-users’ perceptions of sex may be bigoted. (Para 13.60 of the EHRC statutory code states that “Care should be taken in each case to avoid a decision based on ignorance or prejudice.”) 

This seems to have encouraged service providers such as the Government Legal Service to create a policy that employees who state that they want single-sex facilities should be investigated and potentially disciplined for requesting them. This goes far beyond the requirement for objective justification in the EA and becomes harassment of employees seeking to assert their own sex-based rights.

9.         Lacks of consideration of dignity, privacy and previous trauma

Providing cubicles within a mixed sex-changing room does not address everyone’s needs. Many people still want to know whether the room in which the cubicles are situated is single-sex or mixed-sex. Knowing that there is a man in the next cubicle will make many women and girls uncomfortable enough to self-exclude. It may re-traumatise those who have previous experience of sexual abuse and it may mean that women from certain cultural and religious backgrounds do not feel able – or even are not allowed by their families – to use the services.

10.      Lacks consideration of Violence against Women and Girls

The vast majority of violence committed against women and girls is on the basis of sex by male perpetrators. Abuse ranges from the physical to the psychological and includes the use of smart-phones and other technology to take photographs and films of women and girls. The 2011 Code does not acknowledge these abuses and was written before recording devices were so widely available. Nor does the Code acknowledge that there is no evidence basis to show that people will behave any differently from others  of their natal sex category in this regard.

Sex and the Law Society: Open Letter to the Simon Davis, President of the Law Society

Dear Simon Davis

We write regarding the Transition and Change to Gender Expression Template published by the Law Society in August 2020 and particularly about the suggestion that gender reassignment means that individuals should “use the facilities that make you feel most comfortable”.

While the status of the Template is unclear, members and firms would expect it to be legally accurate and to recommend best practice. Our concern is that neither expectation is fulfilled for the following reasons:

1. It misunderstands the protected characteristic of sex. The Equality Act 2010 definition makes no reference to stereotypes and simply refers to the condition of being either male or female. Referencing stereotypes as a definition for sex is inaccurate and will tend to reinforce sex discrimination.

2.  No consideration of women’s rights or interests has been undertaken and this is particularly important, as women are not well represented at partner level in law firms. Many women, whether for reasons of privacy, dignity, safety or for religious reasons or previous trauma from male violence, are not comfortable using mixed sex facilities.  It is surprising therefore that the impact on women has not been considered and no consultation undertaken with the broader membership.

3.  The Template encourages law firms to breach the Equality Act 2010.  The Act contains single-sex exceptions enabling employers and service providers to provide single-sex facilities where objectively justified.  Women are entitled to expect their employer to provide single sex facilities (and to exclude men and transwomen regardless of their legal sex). We consider that failure to invoke the exceptions is likely to be indirectly discriminatory, placing women at a particular disadvantage without justification.

4.  The Law Society endorsement of this Template encourages employers to breach the requirements of Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992, that employers provide single sex toilet and changing facilities save in circumstances where there are separate lockable rooms (meaning separate lockable rooms not merely separately cubicles). Breach of those regulations can be prosecuted as a criminal offence. 

We do not single out the Law Society for criticism, as other organisations such as ACAS and government bodies have also produced incorrect guidance. It seems that that policy has been “copied and pasted” by non-lawyers who are not abreast of the relevant up-to-date statute and case-law. However, we would have expected a better standard of guidance to come from the Law Society.

We request the withdrawal of the Template as a matter of urgency, with a revised Template being issued only after advice has been obtained from a specialist discrimination lawyer. Members of Legal Feminist would be happy to assist.

Yours sincerely

The Legal Feminist Collective

We are a collective of practising lawyers – solicitors and barristers – who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas, including employment law, discrimination law and public law.

Extending Court-Hours: Is the Future Female?

For most of us, flexible working means improved work-life balance and the ability to combine caring responsibilities with work; responsibilities which, as much as we may wish otherwise, fall disproportionately on the female sex. For HMCTS, flexible working appears to mean something rather different.

Days ago HMCTS Chief Executive Susan Acland-Hood suggested that the Crown Courts’ backlog should be dealt with by extending court-operating hours. She dismissed solutions such as the reinstatement of previously cut sitting days to address a backlog which now sits at 41,599 outstanding cases. That backlog had already reached some 38,000 by the end of 2019. At that point HMCTS made no indication of an intention to pause the plan to further reduce sitting days and the size of the courts’ estate. It is fair to infer that HMCTS regard the pandemic as another opportunity to seek to introduce a scheme which has previously been met with overwhelming resistance from the legal profession. 

Acland-Hood’s only allusion to impact was barely detectable, and rather coyly expressed: “it takes people out of their accustomed ways of working, around which patterns and plans including things like childcare are built.” (our italics) In reality, it takes women, who bear primary caring responsibilities, out of their already overstretched “ways of working”. It makes no allowance for the fact that many female lawyers have to make plans of almost military efficiency to manage both professional and personal responsibilites. It is noteworthy that Acland-Hood did not acknowledge that the impact will be most acutely felt by the female side of the profession, and exponentially by those who bear sole caring responsibilities. 

Judicially-led working groups have, we are told, been set up to carefully consider what will work best in individual jurisdictions to ensure that changes implemented in a collaborative way. We are told that all key bodies representing legal professionals and others are involved in these groups and that detailed modelling has been shared.

The concept of extended or “flexible” operating hours is not a new one. HMCTS has been toying with the idea for at least 4 years, and the issue of the impact on female lawyers was raised at the earliest meetings with professional representatives. In April 2017, it published its Flexible Operating Hours Equality Statement; this was intended to be a live document and expressly stated that it would consider the sex-based equality impact of extended hours. It noted the concerns about the impact on work-life balance and diversity 

Perhaps surprisingly then, no account was taken of the impact flexible hours would have on maternity and pregnancy or on breastfeeding, an oversight which the HMCTS Judicial working groups could now reasonably be expected to correct. At the time of its writing the authors of the equality statement appeared to envisage monthly reviews and updates throughout the life of the flexible operating hours project. Possibly less surprisingly, neither reviews nor updates have materialised.

On 28 June 2019 the Evaluation Plan for Flexible Operating Hours’ Pilots was published; here sex-based “disbenefits” were identified and the potential for long term negative impact was recognised. It was also considered possible that flexible operating hours might lead to an unfair distribution of work such as Chambers allocating work to non-primary carers. In other words, working mothers may miss out on work; the female side of the profession would be disadvantaged.

It was also recognised that there could be a negative impact on professionals’ working lives which may have a longer term impact on recruitment and retention, as well as irreducible working practices such as managing preparation time and conferences out of court. Nonetheless, it was suggested that flexible hours might support a better work-life balance for those with caring responsibilities, particularly if combined with better listing practices. 

Discrimination practitioners will be alert to the obvious limitations of a hypothesis such as this, based upon an assumption that legal professionals with primary care responsibilities (statistically, predominantly female) have a partner with whom to share the load of childcare responsibilities. This assumption is one which puts single mothers in the profession at an acute disadvantage..

We pause at this point to note that listing practices have long been a source of disruption (professional and personal) and financial difficulty to practitioner. Legal professionals would be forgiven, we suggest, for viewing the promise that listing might take proper account of lawyers’ availability and commitments, particularly when those commitments are personal with some scepticism.  

The evaluation planned to interrogate how flexible hours would impact on caring arrangements and adjustments to workloads and responsibilities whilst also taking into account the cost of childcare to legal professionals. It was recognised that, in some instances, the types of impacts which flexible operating hours could have on the profession may take years to show up and that the pilots which were only to run for six months may not uncover. 

It is interesting to note that, despite the equality statement’s earlier clarity that those legal professionals most likely to be disadvantaged would be women, there is a marked disinclination throughout the evaluation to refer to this fact in unambiguous terms. Its language is oddly sexless; given the prominence of sex discrimination as a potential obstacle to the lawfulness of the scheme, the refusal to name it might be seen as a form of neuro-linguistic programming, one which is assiduously adopted by Acland-Hood in her blogpost. 

The flexible hearing pilots were concluded in May this year and we find it, yet again, surprising that no mention has been made of their evaluation. The Flexible Operating Hours report must be in train; the raw data having already been collected. In light of the justification now advanced for pursuing Flexible Operating Hours, it would be a startling oversight on the part of HMCTS to fail to update the Equality Statement to take account of the sexed impact of Covid 19. Research from the Fawcett Society and Maternity Action would be an excellent place to start.

Flexible Operating Hours could be workable, and even welcome, for those who are realistically able to reconfigure their childcare responsibilities and share the load with partners or family. But it must not work to disadvantage women who do not have such flexible personal circumstances. The retention of women in the legal profession is a matter of abiding concern. 

In terms of the rate at which the backlog of cases has grown, the public health crisis has made little significant difference. Covid-19 has not created a crisis in the justice system, although it has exposed the pre-existing crisis in those jurisdictions most heavily reliant on publicly-funded work. A ‘solution’ which was devised before the existence of the pandemic, and was designed primarily to cut costs, will do little or nothing to address the consequences of Covid-19 for the justice system, but will almost certainly exacerbate the consequences for the women upon whom it depends.