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:
- 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.
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.
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.
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.