EA 2010 question: legal stuff

[Namechangedtemporarily01]

I was sitting around idly this evening, as one does, painting my nails and trimming the pink bow for my hair, and thinking about the Equality Act 2010. A question occurred to me. I have been unable to answer it by looking at the Act.

My question is- what brings prisons within the ambit of the EA 2010?

Is the provision of a prison a service for the purpose of section 29? This just seems odd and counter intuitive.

Or is the provision of a prison within section 29(6) (exercise of a public function that is not the provision of a service)?

And if it is section 29(6), then what permits the existence of separate women’s prisons? Because as far as I can see Part 7 of Schedule 6 to the EA 2010 only permits the provision of single sex services. So if the provision of prisons is a public function that isn’t a service, Part 7 of Schedule 6 does not provide an exemption that permits single sex prisons.

There are exemptions relating to public functions in Parts 1 to 4 of Schedule 6 but I can’t see they cover prisons.

Is there something wrong here? What in the EA or other legislation permits single sex prisons? There must be something!

Sorry about the name change. Sensitive about outing with such a specific query!

I can see why solicitors and barristers charge such high hourly rates, we're paying them a boredom tax! This stuff is like wading through treacle.

www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice

Reading the relevant parts of the SCP it look likes prisons are a public function and exemptions can apply but it's not clear as in the exemption section it only talks about services.The application of exemptions is referenced near the end of the chapter on public functions.

I think single sex prisons easily meet the criteria of "proportionate means to a legitimate aim".

The Equality Act protects people against discrimination and harassment as employees and service users, this covers staff and inmates.

I think the main section that allows single sex prisons is Communal Accomodation www.legislation.gov.uk/ukpga/2010/15/schedule/23/crossheading/communal-accommodation. And there are also separate laws mandating single sex prisons.

The Prison Rules 1999, Rule 12:

Women prisoners

12.—(1) Women prisoners shall normally be kept separate from male prisoners.

(2) The Secretary of State may, subject to any conditions he thinks fit, permit a woman prisoner to have her baby with her in prison, and everything necessary for the baby’s maintenance and care may be provided there.

Prison Rules and UN Minimum Standards for Treatment of Prisoners. Pre dates the EqA.

United Nations Standard Minimum Rules for the Treatment of Prisoners

Separation of categories

Rule 11

The different categories of prisoners shall be kept in separate institutions or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment; thus:

(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate;

See also Equality Act Schedule 3 General Exceptions, section 27 Single-sex services, subsection 5b

(5) The condition is that the service is provided at a place which is, or is part of—

(a) a hospital, or

(b) another establishment for persons requiring special care, supervision or attention.

[A prison is an establishment for persons requiring special care, supervision or attention.]

See also section 28 below which explains that those with the protected characteristic of gender reassignment can be excluded from single-sex provisions.

www.legislation.gov.uk/ukpga/2010/15/schedule/3

Thank you all! I shall plough through all this.

But...looking at it, at first glimpse, I’m still not entirely convinced. The UN stuff, well, that’s a complex area, how it translates into domestic law; and I’m not sure that ‘service’ really works; and the communal accommodation stuff rests on a definition on the relevant schedule which again doesn’t seem quite right. Best candidate seems to be 1999 Rules but how do they fit with EA?

I’m asking this not because I’m a lunatic who thinks prisons should not be single sex, but because I think this area of law is such a disaster that anything may lurk underneath it. What it suggests to me is that the real reason for the train crash of self id is a patchwork of legislation, not brought together, never consolidated, possibly with gaps, which has made it extremely difficult to get an overview of the disastrous effects of removing ‘woman’ as a proper category.

I think I've found what you're looking for.

EHRC: Services, Public functions and Associations: Statutory Code of Practice:

Premises

3.23
Part 4 of the Act prohibits discrimination in relation to the disposal and management of premises. This covers, for example, those who provide premises for rent, and also the sale of property. This Code does not deal with Part 4 of the Act.

3.24
There will be some situations however where the circumstances will fall within Part 3 and where this Code will apply:

• where the provision of accommodation is generally for the purpose of short stays by individuals who live elsewhere; or
• where accommodation is provided solely for the purpose of providing a service or exercising a public function.

3.25
For example, accommodation is provided in prison for the purpose of carrying out the public function of detaining convicted offenders, and people on remand. This will be subject to Part 3 of the Act. Similarly, the provision of overnight accommodation in a guesthouse would be subject to Part 3 of the Act.

The statutory code as it affects prisons has the same problem as it does with services - 'case by case'. This isn't in the EA itself, EHRC made it up.

'Case-by-case' doesn't mean prison-by-prison it means prisoner-by-prisoner. Hence transgender case boards, Karen White bla bla.

I really think if we could get rid of case by case in the statutory code the EA would be far easier for women to use.

Pencils that's right. I don't think there's anything in the act itself which supports the "case by case" test on an individual basis. The guidance should not say that.

My view is that "case by case" is unworkable, especially in situations where a single, staff member might be called upon to make a decision on the spur of the moment. For example a swimming pool receptionist. Or even a women's refuge.

In cases such as prisons, where case by case means an assessment by the board, we have already seen the case by case approach going very very wrong.

As soon as "case-by-case" thinking enters into any situation, the person thinking it rejects the fact that women have a legal right to single-sex spaces, as expressed in the Equality Act 2010, and places that legal right as secondary to the individual desires of males.

Yes, case by case is unworkable. You can have a policy but you're only allowed to apply it case by case.

The test is no longer whether it's justified and proportionate for women to have female only space in a specific circumstance, e.g. prisons. The test is now whether this particular tw is 'woman enough' for female service users to be expected to turn a blind eye to their maleness and accept them personally into what was a female only space.

'Case by case' means that no-one has the right to run women only services any more. You can have it as a policy but 'case by case' overrules your policy so you can never guarantee female only space to your service users.

There is evidence that the additional requirements in the EHRC Statutory Code were added under pressure from trans activist organisations (a:gender, Gires, Press for Change).

www.equalityhumanrights.com/en/publication-download/equality-act-codes-practice-post-consultation-report

Yes I agree pencils "case by case" makes the single sex exemptions unworkable in practice, and there is nothing in the EA2010 that suggests individual case by case exclusion is needed.

Its interesting the EHRC's statement from last July seemed to dial back on case by case.

In the Code of a Practice they describe it as always needed and focused on individuals.
In the July note they say its "often" needed in regard to circumstances

"This will often require a case-by-case approach to determine what is legitimate and proportionate in any given circumstance."

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

Not only is it unworkable, it also exposes the fundamental inconsistencies in the TRA doctrine. The Equality Act code of practice waffles on about whether someone passes, and says if they do they should normally be allowed in the single sex spaces of the opposite sex.

Where does this leave "acceptance without exception"? What about Danielle Muscato et al?

And who is deciding whether someone passes or not? Again it is really not fair on a leisure centre receptionist on minimum wage to make that call.

The legal position is that single sex spaces are lawful, albeit where that is a proportionate means to achieve a legitimate aim. And also that the correct comparator for a transwoman is a man. So if a man is proportionately and legitimately excluded from a women's space, so should a transwoman. The comparator for a transwoman is not a woman. The case law that held this is still good law.

Taken to its logical and practical conclusion the code of practice facilitates a complete breakdown of single sex spaces.

It makes me so cross that the law is misrepresented in this way in documents that hold considerable legal force, written by the EHRC, who should be upholding the law for all protected groups.

Case by case needs to be removed from the statutory code. It doesn't matter what EHRC say in statements, blog posts or even the rest of their non-statutory guidance.

Statutory code is not the law but it carries a helluva lot of legal weight in court. You need a very good reason not to follow it.

Thanks for setting this out, I find the case by case thing very odd drafting. What exceptions or mitigations would need to be present in a successful case by case..?

I have tried several times to imagine how it would be possible to write Operational Procedures to implement a "case by case" policy and it defeats me.

I have imagined two possible scenarios (maybe others can think of more).

1. A "service" is dedicated and tailored specifically to one sex (not gender) and, intentionally and legitimately, is of little or no benefit to anyone else.

• A precise Service Specification would suggest the Inclusion Criteria.
• Other people would need to be excluded en masse for ethical reasons, i.e. they would not benefit.
• "Case by case" consideration of anyone not meeting the stated Inclusion Criteria would be redundant and a waste of everyone's time and effort.

In this scenario, reasons for exclusion would surely not have to be stated?

1. A service (every service?) has a duty of care to its users. Risk Assessments should be appropriate to the service and intended service users.

• If sex differences create additional risks, is it practical to assess on a "case by case" basis? e.g. Is it possible to acquire the information necessary to assess risk "case by case"?
• If "NO" then a "group exclusion" is the only safe option.

The only point of clarification needed for both the above is that natal sex is the relevant criterion and that gender identity and gender reassignment are irrelevant.

Any thoughts?

--
As an aside:
Having had to write detailed "Referral Acceptance Criteria" for an NHS Service, the first type of scenario is familiar, though not in relation to sex differences.

My experience includes being challenged that the service excluded some groups unfairly. This was NOT because those individuals/groups felt that they could benefit from the existing service but because they wanted the service to change in order to accommodate their needs, i.e. at the expense of whose for whom it was funded and contracted to serve.

Such challenges were not ignored and, after consideration, in some cases the service was reconfigured, in other cases it was not.

Part of the consideration would be:

• Could we change to benefit this group?
• If NO, where should we "signpost" them to? Should we offer any other support?
• If YES, would this impact adversely on our core purpose? eg. conflict with ability to provide service to existing users.
• If YES, consult with Management and Commissioners about priorities.

--

Mole yes I think you're right.

For example, a breastfeeding support group might not want men attending because (1) men don't need breastfeeding support and (2) the presence of men would/could make the women uncomfortable at a vulnerable time when they will be getting their boobs out.

According to the EHRC "case by case" model the group would not be allowed to say "we are a service for women and men (Inc TW) cannot attend". Instead, every time a man or TW wanted to attend the staff would have to assess them. Which would presumably involve asking (1) does this person need breastfeeding support, to which the answer would always be no; and (2) could the presence of this man have a negative impact on the women who are receiving breastfeeding support? And (3) is excluding this man proportionate and legitimate?

The answer to the second question is almost certainly yes. But even if for some reason it was no, the man's presence is already deemed unnecessary by virtue of the negative response to the first question.

And if either question (1) or (2) is answered in the affirmative, my view is that the answer question (3) must be yes. Which makes the whole process ridiculous and you might as well allow the group to have a blanket ban on men. The contrary view, that even where (1) and/or (2) are answered in the affirmative, (3) can be answered "no", then the group will be obliged to admit men. End of female only space.

Another couple of points:

a group like this should in my view be able to have a near blanket ban on men, but choose to admit on a case by case basis. Ie the opposite of the EHRC model. So a partner of a breastfeeding mother could be admitted if she wants him there and no other women are present.

A man who wants to attend a service he has no need for is, I think by definition, a particular problem when it comes to the dignity and comfort of other service users.

@TheCuriousMonkey Thank you for your thoughts on this! I think your note at the end is very helpful re example of a "breastfeeding support group":

a group like this should in my view be able to have a near blanket ban on men, but choose to admit on a case by case basis. Ie the opposite of the EHRC model. So a partner of a breastfeeding mother could be admitted if she wants him there and no other women are present.

That makes it clear that "discretionary inclusion" of others is permitted only when it meets BOTH the following criteria:

1. when it enables the service to meet its aim of supporting breastfeeding women AND
2. when it does not compromise duty of care to service users.

Question for any legally qualified Mumsnetters watching this thread

I have not seen mention of "Duty of Care" in discussions about "mixed sex services" although "Safeguarding" crops up a lot. Health & Safety Legislation normally seems to trump most other considerations and relates to Duty of Care. Also to Protection of Vulnerable Adults where relevant.

Is there a legal reason for this? Or is our attention being intentionally (mis)directed to Equalities Legislation all the time, perhaps when other legislation would be as much if not more relevant?

I think this might have a bearing on your other Note @TheCuriousMonkey :

A man who wants to attend a service he has no need for is, I think by definition, a particular problem when it comes to the dignity and comfort of other service users.

Relevant to the example of the Breastfeeding Support Group, I recall many years ago that a notorious sex offender was banned from local Hospital Maternity Wards when staff realised that he was patrolling every Sunday carrying a big bunch of flowers to ogle breastfeeding women. No reason to be there as not visiting anyone.

Another question for any legally qualified Mumsnetters

Years ago I attended training by Michael Mandelstam on using the law to obtain statutory services for adults and children with disabilities. His advice was always to go to the primary Legislation where Statutory Guidance was unworkable or in conflict with other Primary Legislation, i.e. That courts would be required to rule in accordance with the Primary Legislation and render the Statutory Guidance null and void in specific circumstances and would set precedent.

I would welcome comments on this.

If it can be shown that in a particular case that the Statutory Guidance on "case by case" is redundant and/or impossible to implement then would appeal (maybe not right word) to Equality Act Primary Legislation be likely to be successful?

(I know this has strayed from the OP subject of Prisons a bit!)