Enforcing the Equality Act

[RedToothBrush]

www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/equality-act-role-of-ehrc-report-published-17-19/
Fundamental shift needed for enforcing the Equality Act

The Women and Equalities Committee publishes report on Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission.

The individual approach to enforcement of equality law is no longer fit for purpose, says the Women and Equalities Committee in the report of its year-long inquiry.

The report argues against relying on the individual approach, dating back to the 60s and 70s, and recommends that this must be replaced by a new approach which provides a sustainable deterrent and tackles institutional and systemic discrimination.

While individuals must still have the right to challenge discrimination in the courts, says the Committee, the system of enforcement should ensure that this is only rarely needed: this will require a fundamental shift in the way that enforcement of the Equality Act is thought about and applied.

Recommendations from the Report
The report’s main recommendations are:

Develop a ‘critical mass’ of cases to inform employers and organisations about their legal duties and make adherence to existing equality law a priority for all organisations
Move away from relying so heavily on the current model of using individual litigation to create precedents
Make obligations on employers, public authorities, and service providers explicit and enforceable
Ensure that all who have powers to change the way in which employers, public bodies and service providers operate use their powers to eliminate discrimination and to advance equality
The EHRC must refocus its work and be bolder in using its unique enforcement powers.
The Committee recommends that the Government’s Labour Market Enforcement Director should play a fundamental role, alongside the proposed new single labour market enforcement body.

If such bodies acted consistently on their obligations, then the EHRC could become the strategic enforcer that it should be.

Finally the report recommends that the Government must also make this fundamental shift in the way that enforcement of the Equality Act is thought about and applied.

I'm yet to delve into the report itself, but I do wonder about the EHRC itself and its capability to do this and the danger of it having too much power and being at risk of regulatory capture, and I wonder whether this will give lobby groups more power too - which might be either good or bad from a woman's point of view.

I think it's probably accurate to say there is an issue over enforcement of the Equality act, but part of that is down to definitions and understanding of what the equality acts is supported to do not being well understood.

I have mixed feelings about this and am unsure if it's good or bad.

Reading through the full report now. Will try and pull out interesting bits.

1.We have repeatedly heard that the Equality Act 2010 is breached without challenge and that what little enforcement is happening is insufficient to tackle the systemic or routine discrimination that too many people experience as a simple fact of life. In inquiry after inquiry individuals have reported significant barriers to enforcing their rights under the Act; public sector bodies, including regulators and inspectorates, have shown a lack of knowledge of their duties; we have found widespread, unchecked, discrimination affecting older workers in recruitment, Gypsy, Roma and Traveller communities in health, education and access to services, disabled people in housing, transport and access to the public realm. We have found harassment occurring in employment and public places, pushing women out of jobs and insufficient action being taken to tackle sexual harassment for women and girls in public places. We have found the Equality and Human Rights Commission (EHRC) failing to act in areas of significant inequality and unable to provide an adequate explanation of why it appears not to be able to fulfil the role of a robust enforcer of equality law.

4.The vast bulk of evidence came from individuals and organisations concerned with reducing the burden on those experiencing discrimination, but we were conscious that employers and service providers can also face burdens when faced with law that is unclear, inconsistently applied or not taken properly into account by other enforcement bodies that they interact with. One area where this came through strongly in our evidence was the provision of single-sex services and we consider this in Chapter 7.

Oooo a whole chapter awaits me!!!

The difficulties facing individuals in enforcing their rights
12.The individual approach relies on an individual to initiate legal action, something that many will not be able to do. Inclusion London set out a range of reasons that echoed evidence from other witnesses: poor knowledge of rights; unwillingness to go up against a large organisation with many more resources; complexity of the law; a lack of specialist legal support; the high cost of legal action and very limited access to legal aid. The EHRC also pointed to a range of challenges that they saw as inherent in “a model of protection for equality rights which relies predominantly on individuals bringing claims through courts”, including the imbalance of power between the parties in a discrimination case and the stress and complexity of bringing a claim. They suggested that the latter point was “heightened by the cost and the low level of compensation available in some cases.”

13.We heard directly from individuals who had brought discrimination claims in employment and goods and services. We spoke to one woman about her experience of challenging discrimination in employment, but cannot quote her because her concern of repercussions if she were to be identified meant that we had to take her evidence in private. This in itself speaks volumes about the barriers facing people in an individualised system.

Not sure about this about case by case effectively being replaced by 'class'. Changes to this could lead to a hierarchy of class. Depends on how changes are made. It could be a good thing, but also have inherent poor side effects toom

19.The RNIB told us that individual claims rarely result in systemic change because “cases are often settled for [an] individual with no wider change”15. Esther Leighton agreed explaining that “some providers settle repeatedly—at different locations—rather than do something systemic.” Even those, like her, who wanted to push for more found they couldn’t because of the risk of being penalised with costs liabilities for refusing a settlement, combined with the limitations of the remedies available if they did pursue the case to a successful judgment.

20.This links to another problem with individual enforcement—that the solutions needed were not always individual compensation for an individual act. RNIB argued that, for example, inaccessible websites and a lack of accessible information were forms of discrimination affecting blind and partially sighted people “as a class” meaning that “relying on individual enforcement is not effective.”17 While a higher volume of cases could help, Doug Paulley had “taken 60+ Reasonable Adjustment court cases” but even when his cases had resulted in company policy changing—he gives the example of coach companies that changed their policy to “afford wheelchair users spontaneous travel”—this was not being met in practice and in the example of coaches apparently not being enforced by the relevant regulator

The big bad wolf?
27.Given the powers it has, many witnesses wanted the EHRC to be more proactive in taking enforcement action25 and David Isaac when he was appointed Chair of the EHRC in 2016 made a commitment that the Commission would become a “more muscular regulator”. In 2017 David Isaac told the Committee:

I am very keen that the Commission uses its investigatory and legal powers much more than it has done in the past, because these are powers that uniquely sit with the Commission and we must use them

Given what's been said in other threads, how impartial and fair is the commission itself?

Is the Equality and Human Rights Commission fit for purpose?
84.The above discussion, and the extent of the criticism of the EHRC, raises one important question: is the Commission itself fit to deliver the kind of enforcement strategy that can tackle the systemic and routine discrimination that too many people experience as a simple fact of life? The Commission has itself acknowledged that in a system of enforcement based on individual litigation it “can support and supplement this system, but it cannot replace it."

85.It is safe to say that, in terms of effectiveness, the Commission has a chequered history. Mike Smith, a former commissioner told us that when he joined in 2009 “the organisation was still struggling with the combination of three legacy commissions with three quite different cultures” and that:

I do not think it was incredibly well organised and did not have a well-functioning comms department and had not worked out how to link together its different internal organisations.

86.Since then it has been through a number of restructures, most recently in 2017 when the Commission implemented its new ‘Target Operating Model’. It has recently published a new Strategic Plan for the period 2019–2022 and is consulting on a new litigation and enforcement policy. The question remains of whether these changes on paper will lead to changes in practice.

87.David Isaac told us that the “development and finalisation” of the Commission’s new strategic plan “has given us the opportunity to make enforcement centre stage”. He told us that they had “a new legal enforcement policy” and “a new team that is focused on legal enforcement, with dedicated resources.” The Government Equalities Office supported this change in direction, suggesting that “identification of areas of employment or service provision where discrimination or harassment is widespread albeit perhaps low-level is a more effective approach”.

Aha!

This explains some of the stuff about the EHRC 'needing to be proactive on trans stuff'.

The existence of the commission itself is at stake, and they are trying to identify areas to 'improve' in order to justify their own existence.

I note the following two para which was bolded in the original

96.While we understand that the EHRC intends to make significant changes in direction and agree that changes such as establishing a new dedicated legal enforcement team have the potential to support this, the Commission has not yet demonstrated the ability to act effectively. It was ignored in Sir David Metcalf’s Labour Market Enforcement Strategy and received only small mention in the Government’s Good Work Plan. It was found wanting by this Committee in action on older workers, sexual harassment, inequalities facing Gypsy, Roma and Traveller communities, maternity discrimination and inequalities in the built environment. The Commission has acted on some of these areas, but it should not have needed prompting by a Parliamentary Committee before it did so and the Commission continues to rely on affected individuals seeking it out and convincing it to act, instead of leading work to tackle endemic and structural inequalities.

97.The EHRC must take further action to address the problems identified in the tailored review conducted in 2018. We see little evidence of the kind of clarity and focus that the tailored review recommended. Despite some progress in setting priorities and numerous restructures, the Commission still fails to have the kind of focus on impact and influence that good management should be delivering.

Oh hello, what's this?

A suggestion that public bodies don't really understand their legal obligations on equality???

Need for an explicit duty?
111.Dr David Barrett, having noted “a great disparity in the performance of regulators, inspectorates and ombudsmen in relation to equality enforcement”, attributed this to the “implicit” nature of their obligations:

despite the significant potential of regulators, inspectorates and ombudsmen in enforcing equality, this enforcement role is not explicitly set out in statute. Instead the requirement for regulators, inspectorates and ombudsmen to enforce equality law is said to be implicitly based on these organisations being subject to the public sector equality duty. The implicit nature of this duty has thus been easy to evade

Systematic failure.

Their bold:

126.We recommend that the Equality and Human Rights Commission make enforcement bodies, in the broad sense used in this report, a priority target for investigation and enforcement action for failure to implement their public sector equality duty in their enforcement functions.

127.We recommend that the Equality and Human Rights Commission establish memoranda of understanding with all relevant enforcement bodies within the next 12 months. These memoranda should explicitly set out which enforcement matters under the Equality Act 2010 the enforcement body will undertake and which will remain within the strategic role of the EHRC, as well as a mechanism for dialogue and joint working in less clear-cut cases. For example, we expect that any new labour market enforcement body would have to take on enforcement of routine employment discrimination matters, such as reasonable adjustments by employers, leaving the EHRC free to fulfil its strategic enforcement role and act where its expertise is most needed.

Think this one is significant and very important on many levels and reasons:

6 The need for proactive and preventative duties and obligations
135.Our report on sexual harassment in the workplace found an “epidemic of inaction and poor practice” on tacking sexual harassment in the workplace. Employment lawyer Clare Murray contrasted this with data protection and preventing money laundering, where there are “really stringent regimes that have criminal and civil sanctions.” She argued that:

we should be willing to consider placing as much importance on protecting people’s safety and their wellbeing at work as we do on their data and on preventing money laundering through businesses.

In a highlighted box:

The public sector equality duty is made up of a general equality duty supported by specific duties. The general equality duty is set out in section 149 of the Equality Act 2010. This is the same for England, Scotland and for Wales and it came into force on 5 April 2011. The specific duties are created via secondary legislation. These are different for England, Scotland and Wales.

The public sector equality duty is the title of the duty, and how it is referred to in the Equality Act. It consists of the general equality duty which is the overarching requirement or substance of the duty, and the specific duties which are intended to help performance of the general equality duty.

The general equality duty

The general equality duty applies to public authorities. In summary, those subject to the general equality duty must, in the exercise of their functions, have due regard to the need to:

Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.

Advance equality of opportunity between people who share a protected characteristic and those who do not.

Foster good relations between people who share a protected characteristic and those who do not.
(my bold)

These are often referred to as the three aims of the general equality duty. The Equality Act explains that the second aim (advancing equality of opportunity) involves, in particular, having due regard to the need to:

Remove or minimise disadvantages suffered by people due to their protected characteristics.

Take steps to meet the needs of people with certain protected characteristics where these are different from the needs of other people.

Encourage people with certain protected characteristics to participate in public life or in other activities where their participation is disproportionately low.

The specific duties
The general duty is supported by a set of ‘specific duties’ set out in Regulations made by the Secretary of State “for the purpose of enabling the better performance by the authority” of the public sector equality duty. These apply to a defined list of public authorities, which can itself be extended by the Secretary of State by Regulations under the Equality Act. Those currently in force are set out in the Equality Act 2010 (Statutory Duties) Regulations 2011 and require those bound by them to:

publish information annually to demonstrate compliance with the general equality duty.

publish one or more equality objectives that it thinks it needs to achieve to further the aims of the general equality duty.

I haven't read your posts, my brain doesn't work that way. But thank you for all your research! Someone whose brain does process stuff will surely be along soon!

Chapter 7 is specifically all about single sex provision.

This is the entire chapter:

7 Balancing rights in single-sex services
156.In recommending the fundamental shift in the approach to enforcement set out above, we recognise that the EHRC should retain its strategic role in ensuring that the law is clear and both enforced and enforceable by others. Our evidence suggested two particularly difficult areas where this role needs to be exercised: that of commissioning single-sex services, where the law is clear but frequently misunderstood and unenforced; and the ability of organisations to use Equality Act exceptions that allow service providers to choose if and how to provide single-sex services, where worries about the legal definition of ‘sex’ and its relationship to the protected characteristic of gender reassignment under the Equality Act appear to be acting as a barrier.

What is a single-sex service?
157.When reading through the evidence on this issue, it struck us that different people were using the term ‘single-sex’ in different ways. For some, references to single-sex or women-only services meant services that did or would apply the exceptions to exclude trans women. One submission from a member of the public who described herself as “a woman who is increasingly concerned about the erosion of my rights” stated that “[a]s soon as you say that transwomen are women, single sex spaces become mixed sex.” Another individual, who described themselves as a “PTSD sufferer whose symptoms are triggered by males” felt that:

When a previously single sex provision becomes single gender it then it also becomes mixed sex, and unsafe for me and the multitudes of other women like me.

158.Others were equally clear in their view that the inclusion of trans women had no effect on the single-sex status of an organisation.

What the Equality Act defines as single-sex
159.Most of the rights under the Equality Act are ‘symmetrical’—the ban on sex discrimination applies to men and women, the ban on race discrimination applies to people from all ethnic backgrounds and the ban on sexual orientation discrimination applies to straight people as much as to gay, lesbian or bisexual people. The law has, however, always recognised that discrimination and inequality are not symmetrical and that there are certain circumstances when treatment that may otherwise be discriminatory should be allowed. The provisions that allow for single-sex services are among these.

160.There are four exceptions under the Equality Act 2010 relevant to single sex services, outlined in the box below.

<span class="italic">Exceptions allowing services to be provided only to women (or only to men)</span>

<span class="italic">The first two relevant exceptions (Schedule 3, Paragraphs 26 and 27) allow service providers to provide separate services for men and women, or to provide services to only men or only women in certain circumstances. The symmetrical nature of the ban on sex discrimination means without these exceptions it would be illegal, for example, to hold women-only sessions at a leisure centre or a new fathers’ support group at a nursery</span>

<span class="italic">Exception allowing single sex services to discriminate because of gender re-assignment</span>

<span class="italic">The third exception (Schedule 3, paragraph 28) allows providers of separate or single-sex services to provide a different service to, or to exclude, someone who has the protected characteristic of gender reassignment. This includes those who have a Gender Recognition Certificate (GRC), as well as someone who does not have a GRC but otherwise meets the definition under the Equality Act 2010.</span>

<span class="italic">Application of this exception must be objectively justified as a means of achieving a legitimate aim. An example given in the explanatory notes to the Act is that of a group counselling service for female victims of sexual assault where the organisers could exclude a woman with the protected characteristic of gender reassignment if they judge that clients would be unlikely to attend the session if she was there.</span>

<span class="italic">Schedule 23, paragraph 3 of the Equality Act 2010 also allows a service provider to exclude a person from dormitories or other shared sleeping accommodation, and to refuse services connected to providing this accommodation on grounds of sex or gender reassignment. As with paragraph 28 and other exceptions under the Equality Act, such exclusion must be a proportionate means of achieving a legitimate aim.</span>

161.The Equality and Human Rights Commission has published a series of Codes of Practice explaining the Equality Act. These Codes are statutory guidance, prepared by the EHRC, approved by the Secretary of State and laid before Parliament. While interpretation of the law is ultimately for the courts the Code can be used in evidence in legal proceedings brought under the Act and must be taken into account by the courts and following the Code can help service providers demonstrate that they are acting lawfully. The Equality Act Goods and Services Code of Practice advises that:

If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate aim.

162.On this interpretation of the legislation, a service is single-sex whether or not it includes trans women. If providers of such single-sex services have reason not to admit a trans person (including a person who has a Gender Recognition Certificate), they should be using the exception allowing providers of single-sex services to discriminate because of gender re-assignment.

Commissioning and procurement of single-sex and specialist services
163.The first area of concern we felt was relevant to enforcement was that public authority commissioners appeared to be commissioning gender-neutral services in breach of the public sector equality duty. Janet McDermott, Head of Membership at Women’s Aid, told us that the most significant problem facing their members was “resourcing, funding and the commissioning that is not honouring the public sector equality duty”, but that under the current enforcement system they were not able to challenge these decisions:

In all these years, I have only known of one case where the public sector equality duty was used. [ … ] We do not have the resources to fight these cases.

164.This did not seem to be a problem with the clarity of the law. More than a decade ago the decision in R (Kaur & Shah) v London Borough of Ealing found that the (then) race equality duty “may only be met by specialist services from a specialist source.” The same principle applies to the provision of single-sex services, as is made clear in the EHRC Technical Guidance on the public sector equality duty:

The [Equality] Act recognises that, in certain circumstances, substantive equality will only be achieved if people with different protected characteristics can be treated differently, for example, to reflect their particular needs.

The Guidance goes on to say that the duties will almost always be relevant when public services are being commissioned, and further dedicated guidance has been produced on how the duties should be used in procurement by public authorities.

165.We nonetheless heard that public authorities were increasingly commissioning ‘gender-neutral’ services “that will not enable the aims of equality set out in the Equality Act to be full achieved.” Agenda, who campaign for “women who face violence, abuse, poverty and multiple disadvantage” were particularly concerned that:

commissioning of services at a local level is currently disadvantaging this group of women, with movements towards “gender-neutral” approaches to commissioning, and commissioning of larger contracts which see smaller, specialist women’s organisations lose out, and put some at risk of closing altogether.

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.

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

Place marking to read later

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.

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.

Thanks so much for posting this. I’m going to find time to read the report.

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....

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

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.

Worth noting when reading the various contributions that Diana James, who advocates for what are de facto mixed sex refuges, is a transwoman.

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)

Wow thanks RedToothbush
I got the email this morning but hadn't delved into it yet.
A lot to digest there. I need to mull.

(You've quoted them quoting me upthread too! )

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.