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.

Are you on twitter OP? There are some discrimination lawyers on there who talk about this kind of thing.

You are getting a mixture of advice from this thread. I'm no lawyer, but basically, from what I can tell, there isn't much case law on this.

You can exclude a tw (or g) from female only space if there's a legitimate aim and it's a proportionate response. But what a court would consider legitimate & proportionate isn't v clear because of the lack of case law. Some lawyers think the comparison for unfavourable treatment in this case would be other boys, but they don't all agree.

Anyway if you are on twitter it is worth following @audreysuffolk who is a discrimination lawyer.

Sorry, I haven't time to fully read the thread, but have scanned through. I can't see that anyone has asked if the girls' rooms have individual locks on the doors? Because that is important to know, surely?

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.

What is the justification for allowing this one boy to use the female accommodation? He is a boy. Using the male accommodation would mean that he is treated the same as the other boys. What about a boy who is bullied by the other boys or a boy whose friends are all girls? Should they also be allowed in the female accommodation?

These other boys could argue that they're being treated less favourably because they don't have the protected characteristic of gender reassignment. Of course, in practice, since this is all down to self ID, they could just say they were trans.

I can't see that anyone has asked if the girls' rooms have individual locks on the doors? Because that is important to know, surely?

Yes, if it's like a hotel, then there's no real need for single sex at all, but if the individual rooms don't lock, it's really like a dormitory and they shouldn't be allowing any boys in the girls' area.

That is not a protected characteristic (ie there is special protection for trans people, but not for non-trans people).

That's not right, is it? The comparator for discrimination is between someone who has the protected characteristic and someone who doesn't. Neither of them should be treated less favourably than the other.

The EA 2010 doesn't appear to address children's gender reassignment.

I've seen some teachers arguing in a group I'm following that there's an age exception, as in they are discriminated against by age and so it does apply.

To which I muttered bollocks. And a everyone suggested "check with stonewall and mermaids!"

I would be very interested to know what the answer would be if someone contacted these places (mermaids, stonewall) for clarification of what the law actually says from their POV, undercover so to speak. As I believe this will be happening and being applied and staff and parents aren't aware what the law actually is.

These other boys could argue that they're being treated less favourably because they don't have the protected characteristic of gender reassignment. Of course, in practice, since this is all down to self ID, they could just say they were trans.

As above, being "not trans" isn't protected under the Act, whereas being trans is (ie gender reassignment). So you can't bring a discrimination claim on the basis that you are being treated worse than person who was similar to you but trans.

The comparator for discrimination is between someone who has the protected characteristic and someone who doesn't. Neither of them should be treated less favourably than the other.

I think you might be misunderstanding how the Act works. You have a comparator for discrimination cases. If the Claimant is a transgirl the comparator would be a boy who is not trans but is otherwise the same. As mentioned earlier, for indirect discrimination claims you look at a policy, practice or criterion which applies to everyone equally and see whether it impacts on the Claimant in a way which it doesn't on their comparator.

So the point is not to identify a comparator and say that the a Claimant should always be treated the same as that comparator. Sometimes the Claimant needs different treatment.

I've seen some teachers arguing in a group I'm following that there's an age exception, as in they are discriminated against by age and so it does apply.

To which I muttered bollocks.

You are definitely right - that is utter bollocks.

As above, being "not trans" isn't protected under the Act, whereas being trans is (ie gender reassignment). So you can't bring a discrimination claim on the basis that you are being treated worse than person who was similar to you but trans.

You seem to be saying that the law allows people who self identify as transgender to be treated more favourably than those who don't. Is that what you're saying or have I misunderstood?

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).

Great to have your voice here. It is complex and confusing! I think I've managed to get my head around it all but not 100% certain!

If the Claimant is a transgirl the comparator would be a boy who is not trans but is otherwise the same. As mentioned earlier, for indirect discrimination claims you look at a policy, practice or criterion which applies to everyone equally and see whether it impacts on the Claimant in a way which it doesn't on their comparator.

Can you explain to me why you think a boy who wants to be a girl might suffer more from having to share accommodation with the other boys, compared to a boy who is bullied by the boys (but not by the girls), for example?

And what about the girls who are expecting a female only space? Does the law consider the impact on them? And how does the law justify the boys having a single sex space and the girls having to accept a mixed sex space? Is that not considered discriminatory?

The second link that @MForstater posted which is a government dfe document (second post on this thread) leads to this, which is decidedly apply around a few key issues:

www.intercomtrust.org.uk/item/download/5_3935b49b7a83c18bed142b15104cec36

It acknowledges sports being an issue and appears to recommend third space toilets (?) but is ambiguous around changing facilities and residentials.

@oldcrone, the link I've just posted says exactly that.

I didn't expect to see see so many replies! Thank you everyone.

To clarify, the organisation said the accommodation was to be "single gender" which is what made me prick up my ears but it says there are male and female blocks. Some rooms will be shared, others single. I'm not sure about the bathroom facilities being ensuite or not but they said a trans person would get their own . I don't know exact layout either, I have never been there.

I do see the weakness with arguing against this because of the single occupancy room and own facilities but I am just cross on principle that a boy can say he is a girl and get put in the female block. Biology is the reason we have different sleeping quarters for boys and girls.

I'm afraid I'm not up to making a legal battle of it or anything like that but I want them to know not everyone is happy about their policy.

This thread and the links have been really helpful. I'm going to try and draft something now. I'll update.

The problem is that not being trans, is the protected characteristic of sex.

From that link:

*The legislation lays down that a school must not discriminate against a pupil because of their transgender status. Discrimination can be direct or indirect. Indirect discrimination occurs when a provision, criterion or practice applies to everyone but puts a person with a particular protected characteristic at a particular disadvantage, and it can’t be justified as a proportionate means of meeting a legitimate aim. An example might be an inflexible school uniform rule which offers no “unisex” options such as trousers for girls, and which would therefore create a particular difficulty for an F2M pupil.

Unlike most of the protected characteristics, such as sex, race and religion, but like disability, this protection works in one direction only – not being transgendered is not a protected characteristic. Schools are therefore free to take special steps to meet the needs of Trans pupils without being accused of discriminating against pupils who are not Trans. There is no legal requirement, as there is for disability, to make “reasonable adjustments” for Trans pupils, but schools may take a similar approach to ensure that Trans pupils are properly catered for, and some of the possible steps discussed in this document are described as “reasonable adjustments”. How this is done in practice may differ between schools as facilities and curriculums do vary, but should be worked towards, for the benefit of both school and pupils*

(Pointing this out as it's linked directly from and recommended by a dfe document)

I don't think anyone is considering your examples oldcrone.

They are thinking about things like uniform, boy girl seating plans etc.

Thanks Neurotrash. From your link:

Unlike most of the protected characteristics, such as sex, race and religion, but like disability, this protection works in one direction only – not being transgendered is not a protected characteristic. Schools are therefore free to take special steps to meet the needs of Trans pupils without being accused of discriminating against pupils who are not Trans.

Is this actually in the Equality Act or is it just something Stonewall made up? I find it hard to believe that this could actually be written in the legislation.

I don't know but not being a transgender girl gives you the protected characteristic of being a female/ sex (or a male.)

Being able bodied is not a protected characteristic.

So I don't follow that logic, but it seems to be how trans is being held above sex.

At the same time, a single sex school retains its single sex status if its pupils transition and the pupils remain.

So a girl's school can have trans boys within it and still call itself an all girls school.

The Equality Act states that someone who is in the process of changing their legal gender cannot be discriminated against; refusing them access to single sex accommodation is not discriminating against them.
People who do not share a protected characteristic are not being discriminated against if they are prevented from using an adjustment intended for another group.
So for example, a man is not being discriminated against if he is barred from a breastfeeding room.
Men and transgender people are not discriminated against if they are barred from entering women's sports.

When is it lawful to provide single-sex services?
A service provider can provide single-sex services in the following situations:

• the services are of a type that you would object to someone of the opposite sex being there - for example, separate changing rooms or a service involving personal hygiene

www.citizensadvice.org.uk/consumer/discrimination-in-the-provision-of-goods-and-services/discrimination-in-the-provision-of-goods-and-services1/goods-and-services-what-are-the-different-types-of-discrimination/what-doesn-t-count-as-unlawful-discrimination-in-goods-and-services/single-sex-and-separate-services-for-men-and-women-when-discrimination-is-allowed/

To clarify, the link to that document written in 2015, is within this dfe document, written in 2014.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachmentdata/file/315587/EqualityyActAdviceeFinal.pdf

So it's potentially been updated? After the dfe wrote the EA advice?

Either way, numbers of pupils will be vastly higher than them. The dfe note that there are increasing numbers in the doc.

Op, because the accommodation is single en-suite rooms it looks likely that the trans girl does use a room in the girls block.

Although I'd equally argue they can have a single room in the boys.

It's extremely messy.
I do keep in mind a comment somewhere here that a DD was happy to accommodate a lovely kind trans girl, less so when a more "creepy" boy started to transition. You cannot do this case by case. Precedents are set and then boundaries are erased.

I do see the weakness with arguing against this because of the single occupancy room and own facilities but I am just cross on principle that a boy can say he is a girl and get put in the female block. Biology is the reason we have different sleeping quarters for boys and girls.

What is the school's argument for putting this boy in with the girls? If the accommodation is all self contained, why do they think it would be wrong to place him with the boys?

I don't know but not being a transgender girl gives you the protected characteristic of being a female/ sex (or a male.)

I might be missing your point but everyone (both trans and not trans) will have the protected characteristic of sex - either male or female.

Boys could not successfully use their male sex protected characteristic to bring a claim saying that a transgirl (who remains legally male) is getting special treatment and being given their own room in the girls' block. They would all be male and the only difference would be that the Claimants in this situation would not be trans. But there is no protection on the basis of not being trans.

On the other hand, if you were to ditch single sex accommodation and force both sexes to share a room, women might be able to use their protected characteristic of female sex to argue that is discriminatory because mixed sex rooms are particularly likely to put women at risk.