Single sex exemptions and the Equality Act - advice needed

[doingnicely]

I need to take up the issue of single sex accommodation with an organisation. They say they would have an obligation to a transgirl under the Equality Act 2010 to put them in with the girls albeit single rooms with showers will be available in this instance but still in the girls' section.

I want them to respect girls' rights to sex-segregated accommodation under the Equalities Act and think the transgirl should not be accommodated with the girls.

What I'm slightly uncertain about is the gender reassignment characteristic in the EA 2010. Could they argue that trans comes under that? We are talking teenage male child who identifies as a girl here, not anyone who has had surgery or with a GRC.

Can anyone advise? I might not be able to get back to this thread until tomorrow night so sorry if I don't reply until then.

[MForstater]

"Gender reassignment " does not change the protected characteristic of sex.

www.equalityhumanrights.com/en/our-work/news/our-statement-sex-and-gender-reassignment-legal-protections-and-language

Take a look at the statutory guidance for schools

assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/315587/Equality_Act_Advice_Final.pdf

Although I think with single room (en suite?) accommodation it might be hard to argue.

[doingnicely]

Thanks very much for the quick reply MForstater and for the links I'll read them through.

[ChickenonaMug]

These resources might help also, although some of the advice is only applicable to toilets, some of the advice is applicable to other female-only spaces.

fairplayforwomen.com/school_toilets/

safeschoolsallianceuk.files.wordpress.com/2019/08/singlesextoiletsfactsheet.pdf

[BrandNewUsername]

Agreed, might be hard to argue.

There's Sched 23, para 3 but that's really aimed at communal sleeping and sanitary facilities.
www.legislation.gov.uk/ukpga/2010/15/schedule/23

The gender reassignment protected characteristic applies as soon as someone says that they intend to transition - so almost certainly would apply.

I think I'd just be checking whether whoever is running this is taking safeguarding seriously - ie what measures are in place to ensure that anyone who shouldn't be there cannot enter the girls' dorms and bathrooms.

[OldCrone]

Although I think with single room (en suite?) accommodation it might be hard to argue.

But if there are separate sections for girls and boys, then allowing one boy in the girls section would mean that the accommodation would become mixed sex, so it could be argued that other boys shouldn't be excluded from the girls' section.

Although I suppose they could just make it single gender accommodation like NHS hospital wards.

[OldCrone]

The gender reassignment protected characteristic applies as soon as someone says that they intend to transition - so almost certainly would apply.

But the boy would still be a boy with the protected characteristic of gender reassignment, so shouldn't be treated less favourably than the other boys.

[TheBewildernessisWeetabix]

If they are under 18 it would be a violation of safeguarding policies.

The EA 2010 doesn't appear to address children's gender reassignment.

[BrandNewUsername]

But the boy would still be a boy with the protected characteristic of gender reassignment, so shouldn't be treated less favourably than the other boys.

True and there's case law to back that up.

The real difficulty here though is that there is nothing explicit in the Equality Act 2010 and no case law that I am aware of to suggest that girls have an enforceable general right to single sex accommodation (and it would be extremely hard to argue for such a right where the transgirl in question has a separate room for sleeping and a separate bathroom). If the organisers believe that they have found a reasonable solution that they and the transgirl is happy you'll have a hell of a time trying to change their minds.

[BrandNewUsername]

Apologies for the garbled final sentence but hopefully you get my drift.

[OldCrone]

If the organisers believe that they have found a reasonable solution that they and the transgirl is happy you'll have a hell of a time trying to change their minds.

If the girls and their parents are also happy with this, and none of the other boys claim that they have been treated unfairly because this other boy has been given special privileges, then it might be seen as a reasonable solution. But is it really appropriate to place a boy in with the girls?

[brendansbuddy]

Same issue starting to arise in an area of my work. Our women-only accommodation is very popular with Muslim students (over-18 most of the time) but a transitioning male wants to go in that block. Neither party or their parents are happy and we face challenge on both sides' protected characteristic. This is a nightmare for organisations with no apparent solution.

[midgebabe]

The equality act protects those who have undergone gender reassignment, which I think you need to be over 18 for, so for people you would call girls, they can't have that protected characteristic

There is no obligation under the equality act to treat someone without the protected characteristic as if they did have it

[BrandNewUsername]

The equality act protects those who have undergone gender reassignment, which I think you need to be over 18 for, so for people you would call girls, they can't have that protected characteristic

This is wrong @midgebabe. The definition in s6 covers people even just proposing to undergo gender reassignment (and that does not need to be a surgical process anyway, a child who has changed their appearance, name etc can be said to have undergone or be undergoing gender reassignment).

www.legislation.gov.uk/ukpga/2010/15/section/7

I am not saying that I like any of this by the way. The law is a mess.

[BrandNewUsername]

Sorry s7 not s6

[midgebabe]

I suppose the question is what classes as undergoing gender reassignment. I was think8ngbit was. A formal pathway, for which I understood you needed to be 18 for. I don't believe you can line up all your ducks and get the certificate on your 18th birthday

So changing you name and dress for example is not necessarily being on a formal pathway

[BrandNewUsername]

I suppose the question is what classes as undergoing gender reassignment. I was think8ngbit was. A formal pathway

Unfortunately there is no such requirement in the Equality Act. The definition is intended to be incredibly broad.

[midgebabe]

So in that case, why during the consultation that ran a while back was one of the problems identified with the current GRC system that transwomen needed to live as a woman for 2 years prior to application yet during those two years were not formally protected under the current equality act ?

[EverardDigby]

They are likely to be covered under gender reassignment if they have started their transition, but what OldCrone says, this does not give them the right to be treated as a girl, they just need to not be treated less favourably than a boy not undergoing gender reassignment. Having a GRC would enable them to be treated as legally female, except there are still exemptions in certain situations. They cannot have a GRC until they are 18.

[EverardDigby]

So in that case, why during the consultation that ran a while back was one of the problems identified with the current GRC system that transwomen needed to live as a woman for 2 years prior to application yet during those two years were not formally protected under the current equality act ?

They are protected against discrimination, e.g. in employment or housing etc. but they are not given the right to be legally treated as female.

[BrandNewUsername]

So in that case, why during the consultation that ran a while back was one of the problems identified with the current GRC system that transwomen needed to live as a woman for 2 years prior to application yet during those two years were not formally protected under the current equality act?

Until a transwoman gets a GRC they have the protected characteristics of gender reassignment and male sex. They don't have the protected characteristic of female sex.

Let's say the organisers changed their minds here and said that the transgirl had to stay with the boys. There are two potential types of discrimination:
A) Direct discrimination. Not likely to be useful here unless the transgirl could show that the organisers would act differently if there was a boy who wanted to be with the girls for reasons unconnected to gender reassignment. Eg if the organisers would put a boy who was being very badly bullied by the boys but was friends with lots of girls in with the girls, but wouldn't do the same for a transgirl, that would be directly discriminatory.
B) Indirect discrimination. This is the one that is more likely to be used. The transgirl would say that the policy of segregating accommodation by sex applies to everyone but impacts on them more severely because they don't want to be with the boys now that they are undergoing gender reassignment. There is a defence to indirect discrimination where you are acting proportionately in pursuit of a legitimate aim (ie doing something for good reasons and being as fair as you can) which in theory you could use to protect girls' dignity but that would be difficult here if it is just eg communal socialising areas where the transgirl can go and they will have no access to the girls' seeping rooms and bathrooms. This is why I suggest checking out the safeguarding policies to make sure there really is no way they can access them.

And as above there is the uphill struggle of trying the get the organiser to change their mind once they have hit upon a solution that works for them and the transgirl, even if some of the girls aren't happy with it.

Again, not saying I like the law - just explaining it.

[WorkingItOutAsIGo]

It is very clear that the trans girl has the same rights as other boys: not as girls. So there is no legal need to put them in female accommodation.

Stonewall have been going around telling people this but it doesn’t make it true or legal.

The sooner we have a legal challenge to Stonewall the better.

[BrandNewUsername]

I should add a third gender neutral space is something that the organiser could offer as to the transgirl as then it would mean that they aren't having to be stuck with the boys even if they are not allowed in with the girls, but I don't know whether they can create such a space and you are only likely to be able to get the organiser to agree to this if you can demonstrate safeguarding concerns.

[OldCrone]

The transgirl would say that the policy of segregating accommodation by sex applies to everyone but impacts on them more severely because they don't want to be with the boys now that they are undergoing gender reassignment.

Wouldn't allowing this boy in with the girls be discrimination against the girls, since the boys would still have single sex accommodation but the girls would not? Unless there's also a girl who is demanding access to the boys' section.