publications.parliament.uk/pa/cm201920/cmselect/cmwomeq/96/9603.htm
Annex A: Recommendations made by the Committee and the Commission’s detailed responses
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.
Response: We understand Government is producing relevant guidance in connection with its strategy on violence against women and girls and specialist support services. We welcome the opportunity this presents to ensure that commissioners are clear on their obligations, and we will engage with Government on the development of this work. In addition, we are producing a guide for service providers (see our response to the Recommendation below (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.
Response: We do not accept this recommendation. We recognise that the law requires the consideration of the specific circumstances of each case and we are therefore producing a guide for service providers to aid their decision making. We agree with the Committee that there is a growing need for clarity on what the law says in reference to interplay between single sex services and single sex services exemptions—particularly in reference to transgender people’s rights.
The legal principle at issue is that of ‘objective justification’, which is already covered in existing Codes of Practice. Objective justification requires consideration of all the unique factors of a particular case, which makes guidance with examples of best practice or a Code of Practice very difficult as it cannot cover all eventualities that decision makers must consider. As the Committee noted there is no case law to draw on here.
Equality law cannot tell us exactly how to deal with all the situations that might arise in practice, and while case studies can be a useful aid they do not substitute the need to consider the specific circumstances of each issue. We believe that practical assistance is needed in how to make decisions in each instance and that is what we are working on developing for service providers, in discussion with providers, trans and women’s groups. We will be closely monitoring the impact of the guidance to ensure that it does provide the clarity that service providers and service users are looking for.