Enforcing the Equality Act: the law and the role of Equality and Human Rights Commission

[AncientLights]

I've done an advanced search but can't find that this has already been posted.

The Women and Equalities Committee has just published (23 Oct I think) its Tenth Report of Session 2017–19,Enforcing the Equality Act: the law and the role of Equality and Human Rights Commission(HC 1470) publications.parliament.uk/pa/cm201920/cmselect/cmwomeq/96/96.pdf

These two recommendations are of particular interest (my bold):

Recommendation 14
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)
We agree that clarity is needed on the question of single-sex services and plan to publish guidance to provide this. Earlier this year, the Government committed to develop and publish best practice guidance for commissioners and service providers on their legal obligations under the Equality Act 20101(sic), including how and when to commission specialist and single sex services to meet particular needs. This guidance will fulfil the same role as a statement of law, clarifying how the law works and organisations’ responsibilities under it, including for compliance with the Public Sector Equality Duty.

Recommendation 15
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) As set out in response to recommendation 14, the Government is planning to develop and publish non-statutory guidance on how the Equality Act 2010’s single and separate sex service exemptions apply. (sorry - italics fail & it's long, a bit tricky to condense government-speak)

Am I reading this right and it looks like the government is indeed going to issue clarification about single sex spaces? And make it plain that sexual assault & DV etc survivors are entitled to them?

Fingers crossed...

Yes indeed Empress! One to keep my eye on.

Is it this OP?

www.mumsnet.com/Talk/womens_rights/3720961-Enforcing-the-Equality-Act-the-law-and-role-of-the-Equality-and-Human-Rights-Commission-Equality-and-Human-Rights-Commission-Response-to-the-Committee-s-Tenth-Report-of-Session-2017-19

It looks like it's one step on from that, if that makes sense. Clearly around the same topic but not quite matching up. Am on phone at the mo, will look on lap top as will be easier.

Oh, this looks hopeful.

ah, so I think I watched some of the sessions of the committee that went into the preparation of this, a session on DV shelters in particular

it's good to see that what appeared to be so blindingly obvious to me during the testimony was also apparent to the commitee members

it's good to see that what appeared to be so blindingly obvious to me during the testimony was also apparent to the commitee members

Joanie Walsh had been writing to those making policy decisions about prisoners. She got a horrified letter back from someone saying he’d raised the issue now, but it literally hadn’t crossed their minds to consider the effects on women...

jesus

and this is why you consult widely and do an equalities impact assessment for new policy. it helps to flush out those blind spots

unless you're the welsh government of course....

@AnyOldPrio The male politicians never do remember to consider how anything will impact women until some woman writes them a letter and they are reminded of the inconvenient truth that women are voters too.

Apologies, it wasn’t a politician. Here’s the story in her own words.

twitter.com/joaniwalshi/status/1185993700079558658?s=21

www.mumsnet.com/Talk/womens_rights/3720961-Enforcing-the-Equality-Act-the-law-and-role-of-the-Equality-and-Human-Rights-Commission-Equality-and-Human-Rights-Commission-Response-to-the-Committee-s-Tenth-Report-of-Session-2017-19

The thread linked earlier is the EHRC response to this recommendation.

It was published a week or so ago.

The EHRC have REFUSED to do what is recommended for enforcement. They want to carry on with guidelines.

This is predicable but poor.

Sorry that is now confusing. I've re-linked the thread I started a wekk or so ago in my post above and as you can see the title is the EHRC RESPONSE to the committee.

They refused.

This is the 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.

So not statutory, another ambiguous mess of guidelines. The boss of EHRC is ex Stonewall, what do we expect? They do not want to be forced to comply with a law that keeps men out!

“The boss of EHRC is ex Stonewall,”

It’s all so incestuous. And so frustrating that every step forward women fight for, there’s a man dragging his feet and wasting time.

I am very concerned about this particularly given the recently leaked schools guidance. Their refusal reads as though they want to interpret ‘case by case’ as ‘person by person’. However the equality act is clear - case by case means ‘situation by situation’ not ‘person by person.. They want to skip this through without parliamentary scrutiny. Liz Truss seems onboard with the women’s cause so writing to her department. Legally this needs challenge, particularly the schools guidance.

Exactly what Tawny said.

If EHRC response is:

’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.‘

Codes of practice have to be written all the time without case law. Existing Codes of practice which are not written clear enough or in detail enough to be helpful to their target audience also have to be rewritten all the time.

The point is (which the Women and Equalities Committee are rightfully saying) that some new and additional content is needed here for service providers to bridge between the legalese wording of statute and how to actually handle making this assessment in practice if you are a service provider and serve your users in line with the law because organisations are confused by it.

Tough luck if that is ‘difficult’ or contentious to produce, or perhaps if producing any clear boundaries In this specific instance goes against the received politics that some people (who aren’t the relevant service users or service providers) feel happy with, or whatever.

Relevant context not included by Women and Equalities Committee: everyone knows that powerful well funded vested interest lobby groups are going around saying whatever they subjectively think that the law is here, (rather than saying clearly this is what they would like the law to say, which is fine to do, but these are two different things).

This lobbying, which is presented as fact based advice, may be also contributing to this ‘confusion’ (or fear, or ignorance) on the part of service providers.

What is inexplicable to me is why it would appear that the EHRC (which should be an independent body), does not appear to want to add ‘clarity’ or correctness to that muddled or perhaps even deliberately obscured operating environment for these service providers. That is surely the EHRC’s job to do?

It’s nonsense that you can’t provide a Code of Practice to statutory law because it’s either difficult to do or there isn’t any case law.

They could make guidance to put in a Code of Practice by looking at the evidence for what Parliament intended when they made the relevant statute- Hansard records of debate, contemporary statements by ministers and whatever else.

They can then also consult with the service providers to see what their areas of lack of clarity in day-to-day operation are. And with groups representing service users.

Then they can draft up outlines with worked examples of the key accepted areas where doing xyz would be three legal and appropriate in response to a typical scenario or set of issues, but doing abc would not be appropriate, all backed up by evidence from the statute and all their other relevant sources for why they have drafted this guidance that way.

Then they can consult on those drafted guidelines publicly so anyone can point out gaps, or say if they disagree with the basis for taking xyz approach.

After that and after any revisions needed, they could then publish the Code of Practice. After that, the service provider organisations would need to justify why they didn’t stick to the Code of practice guidelines or apply the principles in any given scenario or set of issues.

This Code would be reviewed regularly over the years and updated if significant case law changes arise, or big practical questions still are unanswered by the Cide of Practice - exactly as the Women and Equalities Committee are pointing out is needed here- assuming that the statute itself remains unchanged for a while.

It’s not OK for organisations to refuse to produce a Code of Practice because they think a Code of Practice would need to cover every specific individual scenario, which would of course be impossible.

But that is not what a Code of Practice is meant to be, nor what it is used for by service providers. There is nothing to stop drafting of (let’s say) decision trees for the most common or straightforward scenarios. Plus signposting to what to do, what questions service providers should ask themselves, in scenarios that are more complex or less frequently encountered.

Which calls into question why this response from EHRC is able to stand and how the Women and Equalities Committee will respond to this refusal?

What does the Minister in charge of EHRC say? This isn’t some abstract legal question, women in really awful situations are being forced to share services with men, or accept men staff at those services, which means they are being deterred from help which they desperately need and is supposedly designated for them.

IIRC there was a FWR thread not long ago by a woman in exactly this situation, I don’t have time to dig it out now But as Tawny says, organisations shouldn’t refuse to produce a Code of Practice because they think a Code of Practice needs to cover every specific individual scenario, which would of course be impossible.

But that is not what a Code of Practice is meant to be or what it is used for by service providers. So there is nothing to stop something being produced that has eg decision trees for the most common or straightforward scenarios and also signposting to what to do, or what questions service providers shouldn’t ask themselves, in scenarios that are more complex or less frequently encountered.

Which calls into question why this response from EHRC is able to stand and how Women and Equalities Committee will respond to this refusal? What does the Minister in charge of EHRC say? This isn’t some abstract legal question, women in really awful situations are being forced to share services which they expect should be single-sex, with men, or to accept physically male staff giving them those services, which means women are being deterred from help which they desperately need and is supposedly designated for women.

IIRC there was a thread not long ago by a woman in exactly this situation, I don’t have time to dig it out now but obviously it isn’t acceptable for women to suffer while this ‘difficult’ stuff is being shrugged off by organisations who seem not to want to rock the boat.

Ugh sorry for my paste fail and duplications. Hope you get the picture anyway.

If I recall, the Mermaids online data breach exposed the EHRC as being in cahoots with Mermaids in looking for a school to drag through the courts (cos that what government agencies do to schools who try to ensure that children retain the right to sex segregated spaces). They're evidently quite happy to put a school through the stress and expense of a court case when it suits them?
Seems very hypocritical.