EHRC single sex guidance out

[ItsAllGoingToBeFine]

Here: www.equalityhumanrights.com/en/advice-and-guidance/separate-and-single-sex-service-providers-guide-equality-act-sex-and-gender

I'm off to read it...

I'm going to try to read it now

Summary:

"The Equality Act allows for the provision of separate or single sex services in certain circumstances under ‘exceptions’ relating to sex.

To establish a separate or single-sex service, you must show that you meet at least one of a number of statutory conditions (set out in this section of the guide) and that limiting the service on the basis of sex is a proportionate means of achieving a legitimate aim. For example, a legitimate aim could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety. You must then be able to show that your action is a proportionate way of achieving that aim.

There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service. This is allowed under the Act.
However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a Gender Recognition Certificate or not.

When considering how your service is provided to trans people, you must balance the impact on all service users and show that there is a sufficiently good reason for excluding trans people or limiting or modifying their access to the service. Some service providers may find it helpful to have a policy for how services are provided to trans people. Where this is the case we recommend you develop a policy but this is not a legal requirement. If you do have a policy you should be prepared to consider whether particular circumstances justify departing from the policy.

Their examples of legitimate single sex spaces are good:

Only people of that sex need the service.

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Providing the service jointly to both sexes would not be sufficiently effective.

Example: if women of a particular religion or belief will not use the local swimming pool at the same time as men, women-only swimming sessions could be provided as well as mainly-mixed sessions.

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The level of need for the services makes it not reasonably practicable to provide separate services for each sex.

Example: a women-only support unit for women who have experienced domestic or sexual violence can be set up, even if there is no parallel men-only unit because of insufficient demand.

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The service is provided at a hospital or other place, where users need special care, supervision or attention.

Example: single-sex wards in hospitals and nursing homes.

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The service is likely to be used by more than one person at the same time and a woman might reasonably object to the presence of a man (or vice versa).

Example: separate male and female changing rooms.

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A person might reasonably object to the service user being of the opposite sex because the service involves physical contact.

Example: sports sessions involving a high degree of physical contact or any service involving intimate personal health or hygiene.

Only just at the beginning but already pleased to see this bit:

"We use the term ‘biological sex’ because this is how legal sex is defined under the Equality Act for people who do not have a Gender Recognition Certificate."

There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service. This is allowed under the Act. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim.

The conflation of sex and gender helps no one. FFS. 'the single-sex service of the gender in which they present'

Surely, if you provide a single SEX service and prevent a person of the OPPOSITE SEX from using it regardless of their gender presentation, this is within the law? It would no longer be single sex if an opp sex person enters it, therefore excluding people of the opposite sex has to be classed as a proportionate means of achieving a legitimate aim - which is to keep the space/service SINGLE SEX!!

Shit’s going to hit the fan. I think it’s good.

Good examples. Hope those evil sods at Edinburgh Rape Crisis read it.

@NancyDrawed

There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service. This is allowed under the Act. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim.

The conflation of sex and gender helps no one. FFS. 'the single-sex service of the gender in which they present'

Surely, if you provide a single SEX service and prevent a person of the OPPOSITE SEX from using it regardless of their gender presentation, this is within the law? It would no longer be single sex if an opp sex person enters it, therefore excluding people of the opposite sex has to be classed as a proportionate means of achieving a legitimate aim - which is to keep the space/service SINGLE SEX!!

I don't think they are conflating? Trans people are conferred a special status through the equality act, and I think the EHRC here are saying that transpeople don't change sex - just their gender?

Thought the same tabby. And this is out too:

www.equalityhumanrights.com/en/our-work/news/protecting-people-sex-and-gender-reassignment-discrimination

Yep, that's how I read it. Sex is not gender.

I think that summary is spot on. You can limit their access, regardless of how they present (gender) based on sex, if that is proportionate in pursuit of a legitimate aim.

Email just circulated from Maya and Sex Matters:
................................................................................

Dear Spinning,

The Equality and Human Rights Commission (EHRC) has released new guidance on separate and single-sex services this morning.

www.equalityhumanrights.com/en/advice-and-guidance/separate-and-single-sex-service-providers-guide-equality-act-sex-and-gender

We think the new guidance is very positive and is an important step in the right direction, which follows many of the recommendations in our "Principles for Clarity and Respect" and responds to what many women and women's organisations have been calling for.

It clarifies that “sex” (as understood in the Equality Act 2010) is binary, and that a person’s legal sex is their biological sex as recorded on their birth certificate.

It recommends that service providers have clear policies, and make the information accessible to everyone, so that all users know what to expect about whether a service or space is single-sex or mixed-sex.

It specifies that although a person’s legal sex can be changed with a gender recognition certificate, this isn’t relevant information for determining access to single-sex services.

It makes it explicit that single-sex services can be clearly signposted as accessible to people on the basis of biological sex.

It does not call for individual "case-by-case" assessment.

It gives lots of examples of where straightforward single sex services are justified, including rape counselling, women’s refuges, women’s fitness classes, communal changing rooms at a gym and male and female toilets at a community centre.

The guidance recognises that the public wants single-sex services with clear rules for a range of reasons, including privacy, dignity, safety, religion and trauma, and that these are legitimate needs.

We will be producing more analysis in coming days, including findings from our own survey on why people value single sex services.

If you would like to join a private call / zoom to discuss the new guidance let me know.

With best wishes

Maya

I like this bit, OP
"The service is likely to be used by more than one person at the same time and a woman might reasonably object to the presence of a man (or vice versa).

Example: separate male and female changing rooms."

Very much.

It specifies that although a person’s legal sex can be changed with a gender recognition certificate, this isn’t relevant information for determining access to single-sex services.

My sense is that THIS is an absolute win. I can't remember which legal case it was, but there was ambiguity about whether the comparator for a transwoman with GRC was a woman or a man. This seems to make it clear that it's a man.

It’s a huge win. Remember MF lost her contract for talking about single sex spaces in precisely these LEGAL terms. The EHRC has all but confirmed she was right.

At first read it sounds clear and clarifies a lot of issues that the usual suspects said were illegal. It sounds like all policy development - you need to think it through clearly, document how and why you're choosing to restrict access to any group and how it will work.
Being explicit that privacy, safety and dignity are legitimate reasons to keep places like single sex hospital wards is a bonus. As is the repeated examples.

Going to take a moment to feel sorry for transwomen who have been so misled about the law. It must be hard for them to read this.

The crazy thing is many of those examples are taken directly from the Equality Act which clearly lays them out. They aren't new.

Right, having skim read through the rest of the guide, I do think it gives good examples of where it is lawful to exclude opposite sex members - and giving privacy (of other users) as a legitimate reason is a good thing and is clear.

But I still think it is confusing to say:

'However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim'

as I think this is what is behind the whole 'you have to let TW use the spaces they want to use, it's the law' that appears to have been strongly pushed.

Interesting that they say customer surveys could be a way of providing evidence as to why services are sex (as opposed to gender) segregated. I would anat that to be actual service users in a person with clipboard and a tick box type survey rather than online, though, as we know how online surveys get gamed.

The conflation of sex and gender helps no one. FFS. 'the single-sex service of the gender in which they present'

I don't think that conflates the two terms - I think it clarifies them. A male can only ever present as female gender - they cannot present as female sex.

When might it be proportionate to exclude men but not transwomen? Surely if it is fine to let transwomen in then there is no reason to exclude other men?

@titchy

The conflation of sex and gender helps no one. FFS. 'the single-sex service of the gender in which they present'

I don't think that conflates the two terms - I think it clarifies them. A male can only ever present as female gender - they cannot present as female sex.

Yes if they said the 'sex' in which they present it wouldn't be right. So I think they've got it right.

Seems good and clear to me
Let's see how it's twisted

@tabbycatstripy

Going to take a moment to feel sorry for transwomen who have been so misled about the law. It must be hard for them to read this.

I do think that this is behind a lot of the anger in the single sex spaces conflicts.

Women believe they have a right to single sex spaces.

Transwomen believe they have the right to access the space that aligns with their gender identity.

Both parties say the law supports them, which is why clear guidance is needed. I am concerned that this is still not clear enough and that Stonewall will keep saying that TW can go where they please

Yes, exactly the same question occurred to me, Pudding. (Or Rice, or indeed Lovely... )