Single sex exemptions and the Equality Act - advice needed

[doingnicely]

I need to take up the issue of single sex accommodation with an organisation. They say they would have an obligation to a transgirl under the Equality Act 2010 to put them in with the girls albeit single rooms with showers will be available in this instance but still in the girls' section.

I want them to respect girls' rights to sex-segregated accommodation under the Equalities Act and think the transgirl should not be accommodated with the girls.

What I'm slightly uncertain about is the gender reassignment characteristic in the EA 2010. Could they argue that trans comes under that? We are talking teenage male child who identifies as a girl here, not anyone who has had surgery or with a GRC.

Can anyone advise? I might not be able to get back to this thread until tomorrow night so sorry if I don't reply until then.

Wouldn't allowing this boy in with the girls be discrimination against the girls, since the boys would still have single sex accommodation but the girls would not? Unless there's also a girl who is demanding access to the boys' section.

Not really unless there is some benefit to it being single sex in this specific case. I'm not sure what the arrangements are other than that the girls do have single sex bedrooms and bathrooms.

I can see the logic to having single sex bathrooms and bedrooms, but if the argument is that the boys have eg a single sex kitchen or sitting room whereas the girls have a similar kitchen or sitting room but it's not single sex because there is this transgirl there thenI can't see the problem (assuming the numbers of people for each kitchen are similar).

I can see the logic to having single sex bathrooms and bedrooms, but if the argument is that the boys have eg a single sex kitchen or sitting room whereas the girls have a similar kitchen or sitting room but it's not single sex because there is this transgirl there thenI can't see the problem (assuming the numbers of people for each kitchen are similar).

Of course it's discrimination. The boys are being treated differently from the girls (allowed a single sex space vs not allowed a single sex space). So they would have to make all areas mixed sex in order to be fair.

You need a less favourable treatment rather than just different treatment @OldCrone for an Equality Act claim. What exactly would we say is the detriment here?

As much as I agree with the sentiment that the atmosphere changes as soon as you introduce someone with male socialisation into what was previously a female-only space, I can't see a judge understanding that.

What exactly would we say is the detriment here?

If there is no detriment to the girls from losing their single sex space compared to the boys who get to keep theirs, why are they separated by sex in the first place? Has the single sex exemption (allowing a different service for males and females) been applied lawfully? In other words, using your argument, there is no reason to exclude any boy from the girls' area, or any girl from the boys' area.

If you are correct, then there is no detriment to women when women's toilets become 'gender neutral' and men get to keep their men-only toilets. I would view this as treating girls/women less favourably, because the boys have a single sex space but the girls do not. Either both should, or neither.

As far as the Equality Act is concerned, if a boy with the protected characteristic of gender reassignment is allowed to sleep in the girls' area (so can elect to sleep with the girls), then boys who do not have this protected characteristic could argue that they are being treated less favourably than him, because they haven't been given access to the girls' area.

I've wondered about that OldCrone, I've not seen it tested that way.

If there is no detriment to the girls from losing their single sex space compared to the boys who get to keep theirs, why are they separated by sex in the first place?

We really need the OP to come back and clarify what the set-up is. I was imagining it might be somewhere like we went on school trips where there is a girl's dorm on one side of the site with bathrooms and common room attached, and the same for boys on the other side of the site. Although who knows? Only the OP can clarify.

Has the single sex exemption (allowing a different service for males and females) been applied lawfully?

That's an exemption from discrimination so it's not relevant unless there is less favourable treatment.

If you are correct, then there is no detriment to women when women's toilets become 'gender neutral' and men get to keep their men-only toilets.

No - I can articulate clear reasons why women may want/need single sex toilets, but as above I'm not clear what the objection is here as long as the girls have single sex bedrooms and bathrooms and there is adequate safeguarding to keep intruders out.

As far as the Equality Act is concerned, if a boy with the protected characteristic of gender reassignment is allowed to sleep in the girls' area (so can elect to sleep with the girls), then boys who do not have this protected characteristic could argue that they are being treated less favourably than him, because they haven't been given access to the girls' area.

The other boys couldn't bring a claim under the Equality Act as they are not being given a room in the girls' area because they are not going through gender reassignment. That is not a protected characteristic (ie there is special protection for trans people, but not for non-trans people).

No you are not understanding. The protection that gender reassignment is relative to you being treated as your natal sex if you weren’t undergoing gender reassignment. It doesn’t give you protection versus the sex you are transing towards.

So the trans girl cannot be treated differently from the boys, but can be treated differently from the girls.

I thought the protected characteristic of sex could take precedence over the protected charateristic of gender reassignment where it could be argued that it was necessary eg rape crisis / women's refuges.

So if the provision of single sex accomodation can be argued as being necessary in relation to that service wouldn't that work. But not sure the circumstances of the provision of accomodation.

And surely "idnetifying" cant be the same as gender re-assignment as otherwise there wouldn't be the attempts to change the GRA to include self identification.

Gender reassignment
(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.
(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.
(3)In relation to the protected characteristic of gender reassignment—
(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;
(b)a reference to persons who share a protected characteristic is a reference to transsexual persons.
www.legislation.gov.uk/ukpga/2010/15/section/7

It may come down to what is written down by the organisation as to why they provide single sex accomodation rather than just accomodation.

And the age of the boy because if they are too young to have started the process or reassignment then it is just identity.

I'm struggling to see what the problem is here. How are the girls separated from the boys? Are they in different corridors? If the children all have individual bedrooms & showering facilities, than surely they are all in single sex accommodation?

In hospitals, the standards are:
Patients should not normally have to share sleeping accommodation with
members of the opposite sex.
• Patients should not have to share toilet or bathroom facilities with members
of the opposite sex.
• Patients should not have to walk through an area occupied by patients of
the opposite sex to reach toilets or bathrooms; this excludes corridors.

Using that as my comparison, a corridor with single rooms off of it would not be considered 'mixed sex'.

It isn't about a hierarchy but (no time to google) the then Equalities Minister gave a clear directive that in the event of the need of for instance single sex service provision such as rape crisis and women's refuges, service providers could legitimately only accept users based on biological sex.

There were threads on here about it, mainly lamenting that so few women service providers used this.

That's why I was saying the issue here is why in the first place the organisation offered single sex accommodation. If it is part of their aims and objectives then they are on firmer ground to say the provisions on single sex accomodation is based on biological sex.

I have just had to complete a whole load of forms for DS to do a volunteering thing.

It was a bad start when they asked the gender of the 'young person (this is for under 18s) with several options - I took the opportunity to use the 'self describe' free text box.

I was a little at the questions asking if he had a criminal record, curfew or electronic tag (sounds like a nice bunch of kids) and if there were any issues arising from dorm accommodation.

It's a minefield.

If there is no problem with having a transgirl in the girls section, then would that not be an argument for the single sex exemption not being applicable in this instance?

No you are not understanding. The protection that gender reassignment is relative to you being treated as your natal sex if you weren’t undergoing gender reassignment. It doesn’t give you protection versus the sex you are transing towards.

So the trans girl cannot be treated differently from the boys, but can be treated differently from the girls.

No I'm afraid you are misunderstanding the law @WorkingItOutAsIGo.

Yes, transgirls are legally (as well as biologically) male.

Yes, their comparator for the purposes of the Equality Act will be a male who is not undergoing gender reassignment.

Yes, this does not mean they are legally entitled to be treated like girls (as transwomen are entitled to be treated as women for most purposes once they have a GRC).

But no - this doesn't mean they have be treated the same as other boys. There are legitimate reasons why they would probably not want to be required to stay the boys. If there is a third gender neutral space, or if it's possible (taking appropriate safeguarding measures into account) to let them stay in what is notionally the girls' area but with their own bedroom and bathroom and no access to the girls' bedrooms and bathrooms, then that is what the service provider must do.

(I'm a lawyer and this is an area that I specialise in. I am gender critical but that doesn't affect my analysis of the law. There is often a lack of understanding of some of the nuances of the Equality Act on here, which is understandable because it's a complex area).

'After questioning by the campaign group Fair Play for Women, the EHRC was forced to clarify that a person without a Gender Recognition Certificate (GRC) is treated for sex discrimination purposes as their legal sex. No child under the age of eighteen has a GRC so a male child is still legally male even if he identifies as a girl.'

Some great advice here:

www.transgendertrend.com/uk-transgender-rights-legislation/

As pp said, Stonewall and Mermaids are telling organisations that boys can use the same toilets as girls. When talking about this to schools, Jan the Mermaids trainer actually told teachers regarding pupils:

"But you can’t prevent anyone from using the facilities of the gender with which they identify and are living as. If someone complains, you provide an alternative to the person complaining. THAT IS THE LAW."

This is incorrect. Oh, and girls, go elsewhere if you don't want a penis in your single sex spaces.

The other thread on sharing single sex spaces has been pulled. We are not allowed to talk about this issue.

As an aside, can anyone DM me the brilliant quote from Barracker I think a poster with De in her name posted it...

Perhaps this new briefing note explaining how the sex exceptions function will be of use?

It’s focused on the impact of gender reform but it does set out the law in relation to women and girls. The focus doesn’t seem to be so much in what the should be done by the service provider but it’s still quite helpful.

mbmpolicy.files.wordpress.com/2020/02/impact-of-gender-recognition-on-sex-based-rights.-r-bull-11-feb-2020.pdf

So the comparator is a boy with a different protected characteristic - e.g. religion?
Jewish boys need a specific diet and at a mixed religion school they should get that but a boy who just doesn't like lasagne can't say he's being discriminated against by not being allowed a cheese sandwich instead?

But if there are separate sections for girls and boys, then allowing one boy in the girls section would mean that the accommodation would become mixed sex,

If they are single rooms with showers and complete privacy, then each room is itself single sex provision.

Why was the other thread pulled? It was really interesting.