Enforcing the Equality Act

Pippa Banham @pippajbanham
@EHRC It would be a start if @WomenEqualities used ‘sex’ in their bio instead of gender in accordance with the protected characteristics in the Equality Act 2010

OUCH.

And thank you for posting all this - both this and Michael Biggs' work seem to be game changers?

They are both hard for government bodies to ignore for various reasons.

They legitimise criticism levelled at trans lobbying as fair. Cos it is and always has been.

Its a wholesale smashing of 'no debate'.

The left wing press can no longer ignore or villify either. Its now 'news'. As in proper ball rolling unstoppable jugganaut of its very own, type change.

truth, I agree about the EHRC however its pretty clear from the recommendations here that they have been effectively served notice that they need to uphold women's rights too and they are under scrutiny to perform better. They are now in a position where the question of whether they are fit for purpose has been explicitly asked in parliament.

That in itself means the lobbying over trans rights, has its silencing effect somewhat negated, and concerns over womans single sex rights are being supported by government as both proportionate, fair and legitimate.

This report is really really important for that reason alone.

It can not be stressed enough how important the testimony of Karon Monaghan, Karen Ingala Smith and Janet McDermott has been.

And Barracker's quote is cracking and to the point too. No wonder it was highlighted!

Right, I hope this will be read in full by as many people as possible but I hope the stuff I've posted is useful.

There is some very crucial and important stuff in there.

On the whole I'm generally pleased, though I think there are a few points where it could be open to abuse or problems from unintended side effects.

But bloody hell there are some woman who need bloody medals as they've been taken seriously it seems.

Tide definitely changed.

I'm not going to post the recommendation summary in full.

I'm just going to post those relevant to chapter 7.

^Balancing rights in single-sex services
28.While the apparent failure of significant numbers of public sector commissioners to properly apply the public sector equality duty to their decision making is a problem of understanding and not of the law itself, it is a clear example of what is going wrong because of the current system of equality law enforcement. This cannot be left to affected organisations to fix. As Women’s Aid made clear, they do not have the resources to do so. (Paragraph 167)

29.We recommend that the Government Equalities Office issue a clear statement of the law on single-sex services to all Departments, including the requirement under the public sector equality duty for commissioners of services to actively consider commissioning specialist and single-sex services to meet particular needs. (Paragraph 168)

30.We do not believe that non-statutory guidance will be sufficient to bring the clarity needed in what is clearly a contentious area. We recommend that, in the absence of case law the EHRC develop, and the Secretary of State lay before Parliament, a dedicated Code of Practice, with case studies drawn from organisations providing services to survivors of domestic and sexual abuse. This Code must set out clearly, with worked examples and guidance, (a) how the Act allows separate services for men and women, or provision of services to only men or only women in certain circumstances, and (b) how and under what circumstances it allows those providing such services to choose how and if to provide them to a person who has the protected characteristic of gender reassignment. (Paragraph 190)

I think there's some stuff here about legal cases and costs

Not sure how it works with vexatious claims... Might it increase them? I might be wrong, but I can't see any consideration given to this.

Risk of becoming liable for the other parties’ costs
208.Fixing access to legal aid will, of course, only benefit those who are eligible for it. Many will not be eligible but will still find the costs involved in bringing a discrimination claim, and the actual or perceived risk of becoming liable for the costs of the other party, to be a significant deterrent.

209.In employment tribunal claims each party will usually bear its own costs. Costs orders requiring the other side to pay a claimant’s cost, or for a claimant to pay those incurred by a defendant, will only be made where there has been ‘unreasonable conduct’. As highlighted in our report into non-disclosure agreements, such orders are rare. However, the rules in the county court are different. There is a higher risk of cost orders being made and, as Nick Whittingham explained:

When you are dealing with a big opponent—a Government Department or a large company—you know that the lawyers’ fees will be immense, enough to wipe out the cost of somebody’s home. It is a huge risk for somebody to take. What they might get from that is minimal in terms of compensation. [ … ] Where we had legal aid, legal aid gives the client cost protection. There is presumption that the client will not have to pay costs. Without legal aid, there is no protection

And

212.We recommend that the Government amend the Civil Procedure Rules to introduce qualified one-way costs shifting for discrimination claims in the county court.

Costs orders and settlements
213.We also heard that claimants in discrimination cases all too often felt forced into settling a claim because they fear that if they do not do so they will become liable for the costs of the other party. This fear applied in both employment tribunal claims and claims in the county court and appeared to be as much due to the tactics employed by defendants and their legal teams as to the rules of the court. Costs orders will only be made in employment discrimination cases where there has been “unreasonable behaviour”. Nonetheless, the law firm Leigh Day told us that should a tribunal claimant reject the offer of a confidential settlement and continue to pursue the claim “they may be threatened with significant adverse costs consequences” and that they were seeing “increasing costs/deposit orders made against claimants in pursuing race discrimination cases which are complicated cases to evidence”

214.In our inquiry into non-disclosure agreements we expressed our concern that “fears about being pursued for employers’ legal costs may be driving individuals to agree to settlement terms such as confidentiality clauses that they do not want”. We recommended that the Government ensure that there is adequate guidance for tribunal judges and litigants on when a refusal to settle a claim may be considered “unreasonable”, including that refusal to agree to an NDA should never, in itself, be deemed unreasonable behaviour in this regard.

215.In this inquiry we heard these concerns repeated and extended to include county court claims where the threat of a costs order is more significant than in the employment tribunal. As outlined in Chapter Two, Esther Leighton told us that she had felt forced to settle before achieving the kind of systemic impact she wanted, at least in part due to the risk of being penalised with costs liabilities for refusing a settlement. She had been put under pressure to sign a non-disclosure agreement as part of such settlements, and while she had resisted so far was afraid that if she continued to do so and it went to court “the court will penalise me for not having accepted a reasonable offer.” As such she said that she would like “really clear guidance for the courts that says that refusing an NDA is an acceptable reason not to settle”. We agree.

216.We recommend that the Government work with the Courts and Tribunals Service to issue guidance to judges and the legal profession on when refusing to enter a settlement agreement or agree to a non-disclosure agreement will and will not constitute grounds for awarding costs in discrimination claims, with a strong presumption that such a refusal, on its own, will not lead to an award of costs against an individual.

But I think there's progress on NDA problems which are particularly plaguing sexual harassment claims.

200.The Ministry of Justice has committed to monitor take up of legal aid for discrimination cases and to assess the level of face to face provision once the planned round of procurement of specialist telephone advice and face to face contracts has been completed. This is to be welcomed but must also explicitly evaluate their effectiveness in securing legal aid for those facing discrimination in a way that genuinely improves access to justice.

201.We recommend that the Ministry of Justice monitor and evaluate the effectiveness of the removal of the mandatory requirement to access legal advice for discrimination cases through the telephone gateway, the planned legal aid awareness campaign and the procurement of specialist advice services in increasing the number of individuals being granted legal aid, including legal representation, for discrimination claims

Bringing clarity
187.Karon Monaghan QC also felt that there was not enough clarity:

it is not enough to have a paragraph in a code of practice saying, “You can exclude people on the grounds of trans status if you need to.” It needs to say, “These are the circumstances and these are the factors you need to consider,” and so on.

188.She suggested that this clarity could be brought either through “carving out” exceptions allowing services such as rape crisis centres to apply a blanket policy or, if this was not possible, more “nuanced guidance”. She argued that this was not about exclusion, but “about where the lines are drawn and ensuring that there are adequate services across the board.”

189.We asked the Equality and Human Rights Commission, whose Equality Act Code of Practice on Goods and Services currently contains the most significant guidance on the operation of the exceptions available to providers of single-sex services, if they felt that current law and guidance was sufficient. Melanie Field told us that she was confident that the Equality Act provisions “are fit for purpose” as “[t]hey allow inclusion and also allow exclusion when it is objectively justified and there is a good reason for it.” She did, however believe that people would welcome more information “about how that plays out in practice”, which would also help ensure that “misconceptions, misunderstandings and genuine fears and concerns” do not promote a climate of intolerance and damage good relations between groups.

190.We do not believe that non-statutory guidance will be sufficient to bring the clarity needed in what is clearly a contentious area. We recommend that, in the absence of case law the EHRC develop, and the Secretary of State lay before Parliament, a dedicated Code of Practice, with case studies drawn from organisations providing services to survivors of domestic and sexual abuse. This Code must set out clearly, with worked examples and guidance, (a) how the Act allows separate services for men and women, or provision of services to only men or only women in certain circumstances, and (b) how and under what circumstances it allows those providing such services to choose how and if to provide them to a person who has the protected characteristic of gender reassignment.

I THINK women's refugees may just have got saved if they follow through with this in the way it looks like they will.

Also note points about dormatories in the 'boxed' section. Hello Guides....

183.We asked our panel of witnesses if they had ever had any complaints from service users about their approach to providing single-sex services, or if they had ever had to turn someone away because they were trans. Janet McDermott reported one incident shared informally with her by a member of Women’s Aid where there appeared to have been concerns about the presence of a trans woman in refuge accommodation, but she was unclear of the precise nature of the concern and it had not come as a complaint. She was not aware of anyone having been turned away because they were trans. Diana James told us that they had turned people away for other reasons, but they did not know if they had been trans and no members of staff could remember ever having had to turn someone away because they were. Nia had turned trans people away from the refuge “for reasons other than because they were trans”, but Karen Ingala Smith was also clear that if they had needed to rely on the exceptions in the Equality Act to turn people away they would have done so.

184.It became clear that guidance on what organisations can and can’t do was lacking. Women’s Aid were working to produce guidance for their members, but this was taking time because they were seeking to ensure consistency with others in the sector. Janet McDermott also argued in favour of national guidance from the Government—particularly to ensure that those commissioning support services for victims and survivors of domestic and sexual abuse were aware of the need for women-only services.

185.Karen Ingala Smith felt that the current guidance on single-sex services made the law more, not less, difficult to understand,213 particularly where it “points towards a case-by-case analysis” of whether the exception allowing the exclusion of someone on the basis of gender reassignment can be used. She was particularly concerned that ‘proportionality’ could be interpreted in a number of different ways.

186.Diana James agreed that greater legal clarity was needed “so everybody knows where they are coming from legally.” She also called for guidance to be written clearly and with the involvement of all groups:

You have to include people who are trans women who have been through or work in the refuge system, but you also need to include those people who have feelings that are diametrically opposed to that. It is going to be a really difficult way of doing it, but if we are going to come to some organisational and legal arrangement where this is going to work, there is not really a lot of choice. We have to come to an agreement.

The exceptions in services supporting victims and survivors of domestic and sexual violence
174.In order to explore this question in more detail we held an oral evidence session with witnesses from Women’s Aid, Nia, an organisation providing support to survivors in East London and the Cornwall Refuge Trust.

175.Diana James spoke on behalf of the Cornwall Refuge Trust and explained that:

Our experience is that we have never actually used [the exceptions]. We have never considered needing to use the Equality Act because we have been inclusive within the women’s refuge.

[ … ]

We have had trans women through the women’s refuge and we have had transmen through the men’s refuge, and lesbian, gay and bisexual people through our refuge all the time.

176.In contrast, Karen Ingala Smith speaking for Nia argued that a women’s refuge that admitted trans women was a mixed-sex refuge, stating that “[i]f you are saying you have inclusive refuges, then you have refuges where men and women are housed together.” On this basis Nia had developed a specific “prioritising women policy”. Ms Ingala Smith explained:

We decided to do that because we decided as an organisation we wanted to protect single-sex women-only services as much as possible. Because of the way commissioning and the Equality Act work at the moment, we are able to provide single-sex services to our refuges, our women’s service, our rape crisis and domestic and sexual violence group work situations. In our other services, we are contracted to provide services, in most cases to women as well as men. Where that is the case, we provide services to everybody.

177.She explained that they made use of both the exception allowing for single-sex services and the exception allowing such services to exclude individuals on the grounds of gender reassignment. It was clear from her evidence that she believed that excluding people with the protected characteristic of gender reassignment was the only way in which Nia’s service could be considered women-only.

178.Not unsurprisingly given that they are an umbrella organisation for a diverse range of services, Women’s Aid had a more mixed picture of how those services were deciding when and if to use these exceptions. Janet McDermott explained that:

A lot of members would not have a specific policy related to the Equality Act, but the existence of the Equality Act gives a confidence and presumption to services that they are doing the right thing in delivering women-only provision and that the law is behind them.

179.The panel discussed how the services they provided or worked with handled problems that may arise. Diana James told us that any problems in the refuge in which she worked were of the type that you would expect in the service they provided, and were unconnected to their inclusive approach:

[i]f you get half a dozen traumatised women in a refuge, not everybody is going to get on with each other. There is going to be, “My abuse was worse than yours. What are you doing here?” If you get a lesbian in a refuge, “Women do not hit as hard as men do. Your abuse was not as tough as mine”.

180.Such problems were dealt with “through policies, sitting down and speaking to people about issues they are facing and you work it through.” The Cornwall Refuge Trust also had robust safeguarding processes in place to ensure that no-one who may be a risk could access their services, regardless of their trans status:

We do the prior stuff, everything, all the procedures before someone gets in, because you could have a woman come along who is a lesbian and we could have her ex-partner in the refuge. Therefore, we have to be really careful about everybody who gets into a refuge.

181.Janet McDermott similarly explained that their members used risk and needs assessments “to pick up any malicious, vexatious or disruptive intention by anyone trying to access the service.” This was not just about an initial assessment, but also “managing relationships in communal living situations and managing group work.” This was particularly important for refuge services because of the nature of domestic abuse:

Domestic abuse is about an abuse of power and control, so all our practice has to be about challenging any hint of perpetuating coercive behaviours in residents in refuge and in our services. The services can be unsafe places for all sorts of reasons [ … ] because of racism, because of homophobia, because of different levels of access to privilege, status, power and so on. We have to manage those power dynamics all the time within our service-user population and in relation to looking at a new referral and how safe our service is going to be with its current service users for this new potential referral.

182.Karen Ingala Smith was less confident that the concerns Nia had identified could be managed through risk assessment, explaining that:

When you first take a referral, it is over the telephone. Sometimes a woman is in an immediate place of danger and she has to get to the refuge quickly. Anybody who knows about refuges knows that sometimes you get women turning up, if they are lucky, with a bin bag full of stuff and the bin bag full of stuff is sometimes just the children’s toys [ … ] You do not get time to do a massively detailed risk assessment usually before the woman arrives.

She felt that it would be too difficult for a refuge in such circumstances to assess the likely risks that she felt would result from transgender people accessing Nia’s services.

What was leading people to be concerned?
171.Many of those who wrote to us felt that the Government planned to make changes to the Gender Recognition Act, to remove certain barriers to the granting of a Gender Recognition Certificate (GRC), which they felt could undermine women’s rights and specifically threaten the use of single sex-exceptions by service-providers. For example, one member of the public argued that:

We desperately need legal clarity on the terms ‘transgender’ ‘transsexual’, and ‘gender reassignment’—I think [the] way they are currently being used, and the way the [Equality Act] interacts with the GRA 2004, is being abused, misused, misapplied and misrepresented

Another member of the public argued that “The combined effect of the [Gender Recognition Act] and the [Equality Act] is to conflate sex and gender irretrievably, and what remains is a rat’s nest of contradictions, where sex-based rights cannot be properly invoked.”

172.The Government has yet to report on its consultation into its review of the Gender Recognition Act, so the Committee asked Karon Monaghan QC, an expert equality law barrister, if the Gender Recognition Act as it currently stands, or any changes to it, would impact on the Equality Act and undermine women’s rights in the way set out in submissions to the committee. She was clear that:

If there is a change so that self-identification becomes the route to a GRC [ … ] you will not need to change the model of the Equality Act. A trans woman with a GRC will still enjoy protection against discrimination because she is a trans woman, and she will enjoy protection as a woman because she has a GRC, but she will still be subject to the exemptions in relation to single-sex services. Whether or not she has a GRC [ … ] she can still lawfully be excluded from single-sex services such as rape crisis centres and so on, subject to thresholds being reached. It cannot be an arbitrary refusal: “We’re calling this a single-sex space. You can’t come in.” It cannot be that. It has to reach a certain threshold of proportionality and so on.

173.She did, however, report concerns that in practice many organisations may be fearful of using the exceptions due to a “chilling effect” from what she believed was a lack of clarity in the law. This meant that many smaller organisations “do not feel confident about where the boundaries are.” FiLiA, a charity that describes itself as ‘a women-led volunteer organisation’ reflected similar concerns, telling us that women’s organisations were worried that “invoking the single sex exemptions of the [Equality Act] will leave them vulnerable to costly and difficult legal proceedings, or cost them their funding.” A women-only holiday centre was worried about how they could “reliably enforce our application of the exemptions” when “it would not be proportionate for us to ask to see birth certificates, and anyway, those transwomen with a GRC would have one that stated they were born female”. In this context, they told us they could “only rely on crossing our fingers that transwomen respect our intention of providing a single-sex service.”

More

166.They cited examples from research into mental health services, which found many Clinical Commissioning Groups were taking a gender-neutral approach, reflected in comments like “[A]ll our commissioned services are for men and women equally”. They call for the EHRC to produce national guidance “to support services and commissioners to ensure they understand the provisions of the Equality Act, the use and application of the Public Sector Equality Duty and the importance of gender-specific commissioning for women facing multiple disadvantage.”

167.While the apparent failure of significant numbers of public sector commissioners to properly apply the public sector equality duty to their decision making is a problem of understanding and not of the law itself, it is a clear example of what is going wrong because of the current system of equality law enforcement. This cannot be left to affected organisations to fix. As Women’s Aid made clear, they do not have the resources to do so.

168.We recommend that the Government Equalities Office issue a clear statement of the law on single-sex services to all Departments, including the requirement under the public sector equality duty for commissioners of services to actively consider commissioning specialist and single-sex services to meet particular needs.

[ Klaxon]

The ability of service providers to use the exceptions
169.The second particularly difficult issue that emerged was the ability of organisations to use the Equality Act exceptions that allow service providers to choose if and how to provide single-sex services. While not strictly speaking an enforceable ‘right’ these exceptions are a part of the way in which the Equality Act 2010 seeks to balance the rights of all protected characteristics in a single Act of Parliament and it is in everyone’s interest that these are clearly understood.

170.This is also an area where the current individual approach to enforcement is clearly problematic: normally, the most effective way to bring about legal clarity would be through significant case law. This does not yet exist in this area, and the only way in which it can be created is for either a potentially vulnerable individual or the EHRC to bring legal action against an organisation that may well be providing essential services to equally vulnerable people. The EHRC was clear in its evidence that this was not its preferred route either:

We do not want people to have to bring cases; we want people to understand what their obligations and rights are and for people to comply with the law. We have a role in helping them to do that.