The Act also effectively permits service providers not to allow a trans person to access separate-sex or single-sex services—on a case-by-case basis, where exclusion is “a proportionate means of achieving a legitimate aim”.
The term “a proportionate means of achieving a legitimate aim” is not a blanket rule and cannot be applied as a matter of policy.
It is intended solely in respect to the impact of one individual by another individual in that specific situation at any given moment in time.
The Act says no such thing. 'Case by case' comes from EHRC's dodgy statutory code (page 198):
www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice
While the Code carries a lot of legal weight it is not the law. There is an ongoing Women & Equalities inquiry into enforcing the equality act and the role of the EHRC. Some of us highlighted the problems with 'case by case' in our written responses, pointing out that the effect of this additional requirement is that if a women-only service wishes to use this exception and is legally challenged by a tw, the case becomes personal.
The test is no longer whether it's justified and proportionate for women to have female only space in a specific circumstance. 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 lobbyists. The post consultation report contains the following:
vii. Various transsexual stakeholder groups responded to the formal consultation and also participated in the parallel consultation events taking place on the non-statutory guidance.
Feedback from the consultation events was incorporated into the employment and services codes where appropriate, particularly on issues of confidentiality, use of single sex services and the legal definition of transgender.
and …
e. Services, public functions and associations
• A number of concerns were raised about the exceptions, in particular the exceptions for charities, single sex services and separate services.
These sections have been revised as a result.
www.equalityhumanrights.com/en/publication-download/equality-act-codes-practice-post-consultation-report
Gires and Press for Change are among the listed respondents, as are a:gender - a group for trans civil servants. Stonewall are listed but this was 2011, before they turned into transwall.
Karon Monaghan QC gave oral evidence to the inquiry on 31/10/18:
It may be that the legislation itself should carve out exemptions for refuges or for rape crisis centres; it would have to be defined more broadly. But for certain safe spaces, so that people know and we don’t have to go through this exercise of proportionality and we don’t have to identify precisely what the issues are in every individual case, we can say, “We have a blanket policy and that is because there is an exemption.”
Even if Parliament hasn’t got the time at the moment to change the exemptions, at the very least there should be very clear guidance, so that people feel confident saying, “I’m sorry, but with this service—”.
data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/women-and-equalities-committee/enforcing-the-equality-act-the-law-and-the-role-of-the-equality-and-human-rights-commission/oral/92165.html
Karen Ingala Smith also highlighted the problem of 'case by case' when she gave oral evidence on 22/05/19 (transcript not up yet)
parliamentlive.tv/Event/Index/0d07ff13-636e-4b51-a946-2877e583dc4c
So Susie Green can underline 'case by case' if she wants to but that does not make it the law. She should understand that 'case by case' is being actively questioned in this inquiry, along with several other items of BS in the EHRC Statutory Code.