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.

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.

Gender identity is by definition only defined by the individual. There is no test, no diagnosis and no proof that the person feels what they claim to feel. Allowing children to self identify their own gender and give them special treatment as a result is absurd and will inevitably lead to creepy boys taking advantage. Anyone who says otherwise is naive or dishonest.

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.

Yes that's what I mean. Take away the trans and sex is left.

The guidance appears to claim that take away the trans and just a child is left, ignoring the importance of the sex, and the female sex is vulnerable.

Take away a disability and you have able bodies. Who aren't vulnerable.

But there is no protection on the basis of not being trans.

Can you tell me where in the equality act it says this? I haven't been able to find it. Thanks.

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?

Well the idea is summarised by the attached picture - sometimes you have to treat people differently to make things fair.

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.
[NB to be clear I think they mean here that boys cannot complain that they are not getting the special treatment that a transgirl is getting - I don't think they mean to go further and say that girls cannot complain in certain circumstances about what the school has done in an attempt to make things better for a transgirl if their rights are being impinged upon]

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.

There is a lot of stuff that Stonewall/Mermaids have made up - but this is not one of them. Although see my clarification in square brackets above.

Can you tell me where in the equality act it says this? I haven't been able to find it. Thanks.

Certainly. The Act only covers discrimination where there is a relevant protected characteristic. The protected characteristics are in sections 5-12. There is one for gender reassignment in section 7 but the wording of that section makes it clear that it only covers people who are intending to reassign their gender or are already going that process/have competed that process.

Section 7 is here:
www.legislation.gov.uk/ukpga/2010/15/section/7

They say they would have an obligation to a transgirl under the Equality Act 2010 to put them in with the girls

No such obligation exists. Ask them to point you to the part of the EA that outlines this obligation, they will not be able to.

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.

This male child probably does have the protected characteristic of gender reassignment. You don't need surgery, you don't need a GRC, there's no age limit. The minimum requirement is that you are proposing to undergo part of a process for the purpose of reassigning your sex by changing non-physiological attributes.

www.legislation.gov.uk/ukpga/2010/15/section/7

Probably a male child saying 'I identify as a girl' is enough to have that PC. Nevertheless it doesn't change the child's sex, biologically or legally.

The relevant exception that makes single sex accommodation lawful in the first place is found in Schedule 23, paragraph 3:

www.legislation.gov.uk/ukpga/2010/15/schedule/23/crossheading/communal-accommodation

It is lawful to provide single sex accommodation and to exclude all legal males from female accommodation, whether or not they have the protected characteristic of gender reassignment.

The gender reassignment exceptions only apply in areas where there is already a single sex exception in place and are only necessary where someone has legally changed sex.

Subparagraph 4 says in relation to gender reassignment, account must also be taken of whether and how far the conduct in question is a proportionate means of achieving a legitimate aim.

The 'conduct in question' is providing single sex accommodation.

Preventing harassment is always a legitimate aim because harassment is prohibited conduct under the EA.

Harassment is when a service provider, employer, public authority bla bla engages in unwanted conduct (e.g. implementing a 'trans inclusion accommodation policy') related to a protected characteristic (e.g. sex) that violates your dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for you.

www.legislation.gov.uk/ukpga/2010/15/section/26

If everyone has their own en-suite room it would be difficult to argue that anybody's dignity has been violated but I think you could argue that an intimidating, hostile and offensive environment had been created for you, if you were a female student in this situation.

Helen Saxby:

It’s sometimes difficult to remember, amongst all the arguments, exactly what women stand to lose here. The sex category ‘female’ is being asked to absorb the sex category ‘male’. What women are being forced to accept could literally not be any more extreme.

notthenewsinbriefs.wordpress.com/2017/11/26/when-womens-rights-are-notadebate/

Excluding male people, even if they are legally female, from female only space is always a proportionate means of preventing unlawful harassment of female customers, employees, service users bla bla, because allowing just one male person into female only space makes it mixed sex for everyone.

As this is to do with children then safeguarding law will also have lots to say. That's not my area of expertise. I miss langcleg's wonderfully clear posts on safeguarding.

We have no legal right as individuals to insist that a single sex exception is used. We do have a legal right to insist that we are not harassed and that children are safeguarded.

But @LangClegsInSpace, the Sched 23, para 4 exemption is aimed at situations where there are shared bathrooms/sleeping rooms (see sub-paras 5 and 6). OP has said there are neither.

It is lawful to provide single sex accommodation. It is an adjustment allowed for the protected characteristic of 'sex'.

Well the idea is summarised by the attached picture - sometimes you have to treat people differently to make things fair.

Why should a boy who thinks he's a girl be treated differently from other boys? The law only requires that he is not treated differently or less favourably than the other boys. I'm finding it hard to understand what special requirements he has which would mean it's inappropriate for him to be treated just like all the other boys in this particular situation.

BrandNewUsername, sub-para 6 includes

a) shared sleeping accommodation
b) ordinary sleeping accommodation
c) sanitary facilities

How do you interpret b) ?

In any case it doesn't matter if a specific situation fits within the small print of a specific single sex exception. Harassment is still prohibited conduct.

The law only requires that he is not treated differently or less favourably than the other boys.

No - that's not a correct interpretation of the law. See my post above about comparators. To reiterate, there will be situations where transgirls (who, just for clarity are biologically and legally male) will be put at a disadvantage if you apply the same rules to them that you apply to other boys. That is indirect discrimination and is unlawful unless there is a valid defence or an exemption applies.

I'm finding it hard to understand what special requirements he has which would mean it's inappropriate for him to be treated just like all the other boys in this particular situation.

I would imagine, amongst other things, that there are very likely to stats to suggest that transgirls are more likely than other boys to be beaten up/harassed etc. if housed with other boys.

That doesn't mean the solution is to always house them with the girls or safeguarding should be set aside, but I can totally see why a transgirl would not want to share a room with other non-trans males.

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.

This implies that trans pupils can be given preferential treatment. The equality act doesn't say that, it only says that people with the PC of gender reassignment cannot be treated less favourably than other members of their own sex, not that they are entitled to special privileges.

Your interpretation seems to be that people with the PC of gender reassignment can't be treated less favourably than other members of their sex, but they can be treated more favourably than others of their sex. Is that what you're saying?

''In UK law, ‘sex’ is understood as binary, with a person’s legal sex being determined by what is recorded on their birth certificate.
A trans person who does not have a GRC retains the sex recorded on their birth certificate for legal purposes.''

''Certain exceptions in the Act set out circumstances in which it is permissible to treat someone differently because of their sex or gender reassignment, for reasons of public policy or to protect the rights of others. ''

This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions.

www.equalityhumanrights.com/en/our-work/news/our-statement-sex-and-gender-reassignment-legal-protections-and-language

To reiterate, there will be situations where transgirls (who, just for clarity are biologically and legally male) will be put at a disadvantage if you apply the same rules to them that you apply to other boys

Could you give an example of such a situation?

I would imagine, amongst other things, that there are very likely to stats to suggest that transgirls are more likely than other boys to be beaten up/harassed etc. if housed with other boys.

But some other boys are also likely to be victims of bullies. Should they go in with the girls as well? What does male on male violence have to do with girls and why should they be affected by this at all? If some boys beat up other boys, it's not up to girls to shelter the victims. Sort the boys out.

I can totally see why a transgirl would not want to share a room with other non-trans males.

I can't. Can you explain why you think that? And in this case it's not about sharing a room. It's about having a self contained room on a corridor of rooms occupied by members of the same sex.

How do you interpret [ordinary sleeping accommodation]?

That's a good point @LangClegsInSpace. I have to say the drafting is rather unclear, although the thrust is definitely that there should be some requirement for privacy that would be at risk if it was mixed sex.

My best guess is that's it's aimed at situations like we had at my uni halls of residence. Each floor consisted of individual rooms and a shared bathroom, and we were segregated by sex so each floor would either have all male or all female residents. Without the reference to ordinary sleeping accommodation, perhaps a male student could have said that they wanted to be housed in one of the individual rooms on one of the female floors, and would go to one of the male bathrooms when they needed to. With that reference to "ordinary sleeping accommodation," it makes it clear that the rooms are covered too.

In any case it doesn't matter if a specific situation fits within the small print of a specific single sex exception. Harassment is still prohibited conduct.

I'm sorry but I'm not following. Harassment against the girls or against the transgirl?

@BrandNewUsername You have argued that putting a boy in with the girls is a trivial matter for the girls, yet you seem to think it's really important for the boy who wants to be a girl. Either it is important, in which case the girls' feelings should be considered, or it's trivial, in which case the boy wouldn't suffer by remaining with the other boys. Which is it?

Harassment against girls.

The guidance appears to claim that take away the trans and just a child is left, ignoring the importance of the sex, and the female sex is vulnerable.

True. Also possibly ignoring the importance of the protected characteristic of religion for certain people.

Take away a disability and you have able bodies. Who aren't vulnerable.

I guess the difference is that the things that disabled people want don't usually put able-bodied people in danger, although I'm sure there are situations where that might arise (eg if a male employee has a mental health condition which leads to them not understanding about other's personal space, should their employer tell other employees that they have to try and tolerate this even if the female employees find the behaviour particularly frightening?).

This implies that trans pupils can be given preferential treatment. The equality act doesn't say that, it only says that people with the PC of gender reassignment cannot be treated less favourably than other members of their own sex, not that they are entitled to special privileges.

It's how the indirect discrimination provisions work. To take a more neutral example, you'll often get places which don't allow dogs unless they are guide dogs or employers who don't allow hats unless they are for religious purposes (eg Sikhs wearing turbans). That is the kind of special treatment that the Act sometimes requires. Sometimes you have to give people what might be seen as "preferential treatment" in order to ensure they are not put at a disadvantage.

Your interpretation seems to be that people with the PC of gender reassignment can't be treated less favourably than other members of their sex, but they can be treated more favourably than others of their sex. Is that what you're saying?

You've got it!

Although I should make it clear that sometimes you can treat people with the protected characteristic of gender reassignment less favourably - ie where the discrimination is indirect rather than direct and there is a lawful defence, or where an exemption applies.

Can you explain why you think that? And in this case it's not about sharing a room. It's about having a self contained room on a corridor of rooms occupied by members of the same sex.

What if, hypothetically, they changed school when they transitioned and nobody knows that they are a transgirl? Putting them in a single room with the boys would out them and could lead to them being bullied.

NB I think I am very good at actually spotting when people are trans, but the Act is definitely drafted with the notion that you may not be able to tell whether someone is trans or not and there are all kinds of restrictions eg on employers revealing that an employee is trans.

But some other boys are also likely to be victims of bullies.

But do they have a protected characteristic? The Act doesn't care unless you have a protected characteristic to hang your claim on.

What does male on male violence have to do with girls and why should they be affected by this at all? If some boys beat up other boys, it's not up to girls to shelter the victims. Sort the boys out.

I wholeheartedly agree. I've said it before and I'll say it again: I don't like the law - I am just explaining it.

Sometimes you have to give people what might be seen as "preferential treatment" in order to ensure they are not put at a disadvantage.

But boys are not put at a disadvantage by being treated as boys, no matter what is in their heads.

What if, hypothetically, they changed school when they transitioned and nobody knows that they are a transgirl? Putting them in a single room with the boys would out them and could lead to them being bullied.

I find this a really disturbing scenario. Adults shouldn't be encouraging children to believe that they can change sex and enabling this sort of behaviour. This would only apply to very young children though, because once puberty starts the differences are more obvious.

It might be useful to consider this as being two issues.

The first issue: The rights of male pupils who identify as trans

The second issue: The rights of female pupils

An example illustrating the first issue

The attainment gap in literacy between boys and girls is at its widest at around age 16. In order to better support boys in this key area, a school organises a week-long mandatory reading group with a specialist for all boys aged 12 to 14.

Here are the two scenarios discussed up thread as they would play out:

1.) A 13yo male pupil who identifies as trans moves to the school and comes to the reading group to improve, but the teacher says no, you can't, because you don't identify as a boy. Every other boy this age would be expected to join however.

This is a form of discrimination against this pupil. If an activity is offered on the basis of sex to all male pupils, then no male pupil should be excluded just because of having a trans identity.

The law is clear: no one should be excluded from their own sex group because they identify as trans.

2.) A 13yo male pupil who identifies as trans moves to the school and asks to be excused from the reading group. That's because this child does not identify as a boy and feels uncomfortable at being included in an activity just for boys. But the teacher says no, I don't care what you identify as, you're a boy and you will join all the other boys.

This is also a form of discrimination against this pupil. If a male pupil who identifies as trans expresses discomfort at joining an all-male group or activity, the pupil should not be forced to take part.

The EHRC's Technical Guidance for Schools for Scotland recommends that schools make reasonable adjustments in dealing with such a case. In my example this could be a separate tutoring session just for this pupil or permission to leave the group.

So, a pupil who identifies as trans should not be excluded from their own sex group against their wishes and should not be included against their wishes either.

And yes, this means that a pupil who identifies as trans may be treated differently from other members of their sex. But that's how it works when a second protected characteristic needs to be considered.

That's how the first issue, that of the rights of pupils who identify as trans should be navigated.

An example illustrating the second issue:

Recent research found that only 10% of pupils choosing to take up A level Computer Studies are female. In order to encourage more girls to choose the subject, a school organises a weekly computer club just for girls aged 12 to 14. It aims to grow their confidence in an all-female environment.

A 13yo male pupil who identifies as trans moves to the school and asks to attend the girls' computer club. As the school has made a case for excluding all other male pupils from this club (this is a justified means towards a legitimate aim), it is lawful to exclude this pupil from the club.

The school does not have to make adjustments for the trans-identifying pupil, just as it does not have to make adjustments for any of the other male pupils when it comes to offering a computer club just for girls.

So, a pupil who identifies as trans does not have the right to be included in provisions made for the opposite-sex. They can be lawfully excluded from such opposite-sex provisions as long as it can be objectively justified to have a single-sex provision in the first place.

HTH

So, a pupil who identifies as trans does not have the right to be included in provisions made for the opposite-sex. They can be lawfully excluded from such opposite-sex provisions as long as it can be objectively justified to have a single-sex provision in the first place.

Thank you for putting that so clearly. It's what I was trying to say in an earlier post (somewhat less clearly) about the single sex exemptions. If the single sex provision is justified, it applies to all the children no matter how they identify, so this child's additional protected characteristic is irrelevant.

But some other boys are also likely to be victims of bullies.

But do they have a protected characteristic? The Act doesn't care unless you have a protected characteristic to hang your claim on.

What about a boy who is bullied because of a disability? Or his ethnicity or religion or because he's gay? Should they all have access to the girls' area as well?

If boys are bullying other boys (whether they have a PC or not), the solution is to sort out the bullying behaviour, not assume that the girls will look after the victims. This problem is nothing to do with girls. It shouldn't be assumed that they will be part of the solution.