Equality Act 2010 Statutory Code of Practice needs changing to protect single sex spaces

[FriendofJoanne]

I've been reading a lot around the Equality Act 2010 and GRA 2004 for a blog I'm writing aimed at professionals. I'm not convinced that updating the Equality Act 2010 to ensure that it is clear that sex means biological sex will help the protection of single sex spaces.

The EHRC Statutory Code of Practice is doing a lot of muddying of the waters; while it is clear that service providers CAN exclude TIM or TIF from single sex spaces with or without a GRC on the basis of gender reassignment there is no clear guidance on how they can do that in practice.

Naomi Cunningham (lawyer) explains it really well here - www.legalfeminist.org.uk/2022/02/16/admission-to-women-only-spaces-and-case-by-case-assessment/

and Rebecca Bull here - www.legalfeminist.org.uk/2022/04/07/single-sex-services-10-reasons-why-the-statutory-code-should-now-be-updated/

Trans Rights groups are using the Code to tell Trans people that they should be able to use the single sex service for their acquired gender and they can only be excluded in exceptional circumstances and on a case by case basis.

To be fair this is absolutely what the Code of Practice states: www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf

13.57
If a service provider provides single- or separate sex services for women
and men, or provides services differently to women and men, they should
treat transsexual people according to the gender role in which they present.
However, the Act does permit the service provider to provide a different
service or exclude a person from the service who is proposing to undergo, is
undergoing or who has undergone gender reassignment. This will only be
lawful where the exclusion is a proportionate means of achieving a legitimate.

13.59
Service providers should be aware that where a transsexual person is visually
and for all practical purposes indistinguishable from a non-transsexual
person of that gender, they should normally be treated according to their
acquired gender, unless there are strong reasons to the contrary

13.60
As stated at the beginning of this chapter, any exception to the prohibition
of discrimination must be applied as restrictively as possible and the
denial of a service to a transsexual person should only occur in exceptional
circumstances. A service provider can have a policy on provision of the
service to transsexual users but should apply this policy on a case-by-case
basis in order to determine whether the exclusion of a transsexual person is
proportionate in the individual circumstances.

Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service. To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be
taken in each case to avoid a decision based on ignorance or prejudice. Also,
the provider will need to show that a less discriminatory way to achieve the
objective was not available.

In the updated 2022 (non-statutory guidance) on single sex spaces www.equalityhumanrights.com/sites/default/files/guidance-separate-and-single-sex-service-providers-equality-act-sex-and-gender-reassignment-exceptions.pdf
they state (p11) You should also not make assumptions about whether or not a person is trans based on gender stereotypes, such as those based on appearance or clothing.

How else are providers supposed to decided who can use which spaces?!

It's the Code that really buggers things up and makes it difficult for service providers to exclude anyone who identifies as trans. How do we get that changed?!

Even if the Equality Act is updated will it make a blind bit of difference?

'You should also not make assumptions about whether or not a person is trans based on gender stereotypes, such as those based on appearance or clothing.'

But for all the transwomen I've come across, I would say that gender stereotypes of appearance and clothing were pretty essential to them. Without their heels, fishnets and rather a lot of make up, they would just be, well men... hmmm

It is a confused mess, and heavily weighted towards advantaging men at the expense of and exclusion of women.

Yes. It needs fixing. My MP recently repeated what I think is the decided party line of 'we're standing behind the EqAct and services CAN provide single sex exemptions' - its about five years too late.

It needs shifting to a clear definition that women are biological females from birth, and provision for women and transwomen both must be ensured and provided for, with female only provision required by law to ensure that no women are excluded. No games around 'this male person really wants to be treated as if they're female' to be played on non consenting women: sad but true that this has become necessary since tolerance and respect won't be extended to women by all male people unless enforced by law.

There will be tantrums, there will be insistence that happiness without excluding women is impossible, there will need to be gatekeeping and consequences for male people determined to meet their own needs by trampling all over women's and enforcing their domination. Yes, it'll be difficult to get this back in its box to where all needs are met equally. I have no sympathy, the government are paid to deal with this. And it should have been faced up to and nipped in the bud years ago before it had time to get this far.

I agree. 'Case-by-case' in particular makes the whole thing unworkable. The new guidance is welcome but it doesn't have the same status.

I'm sure EHRC said a while back that they intended to write new statutory code but it's all gone a bit quiet.

The current code was written with hefty input from TRA groups Press For Change, Gires and a:gender. The post-consultation report makes interesting reading:

www.equalityhumanrights.com/en/publication-download/equality-act-codes-practice-post-consultation-report

Overall the problem is in fact the GRA, that means for "all purposes" those with a certificate are assumed to be the opposite sex to the one they are actually born. So the EA then uses this to allow for exemptions when actual sex takes priority. So ideally it should be written so that the exemptions are the few occassions, such as marriage ceritificates where you do allow the legal fiction that someone has changed sex.

At the moment the problem is the implementation. Not that it cant be done but too many cant be bothered, and as we know too many have had Stonewall training.

I dont think Naomi Cunningham has enough real life experience to comment on this and part of her evidence to the Parliamentary Committee seemed to be based on women's groups finding it difficult to understand. Which is of course complete bollocks and they have been doing this probably since before NC qualified.

The EHRC provides a whole list of when single sex would be appropriate. But try and get local councillors or smug business committees to take notice.

And this isn't just because of TRA sucessful campaigns, but because underlying this our patriarchal misogynistic society doesn't care or respect women.

Gender reassignment provisions in the Equality Act (Schedule 3, para. 28)

If you have met the conditions set out above and have established a separate or single-sex service, you should consider your approach to trans people’s use of the service. In considering your approach and when taking decisions you must meet the conditions set out under the gender reassignment provisions.

Under these provisions, your approach must be a proportionate means of achieving a legitimate aim. This will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. For example, a legitimate aim could be the privacy and dignity of others. You must then show that your action is a proportionate way to achieve that aim. This requires that you balance the impact upon all service users.

Example: A group counselling session is provided for female victims of sexual assault. The organisers do not allow trans women to attend as they judge that the clients who attend the group session are likely to be traumatised by the presence of a person who is biologically male.

Example: A domestic abuse refuge offers emergency accommodation to female survivors. Feedback from survivors indicates that they would feel uncomfortable sharing accommodation with trans women for reasons of trauma and safety. The provider decides to exclude trans women from the refuge. It compiles a list of alternative sources of support in the local area which can be provided to trans women who approach the centre for help.

Example: A leisure centre introduces some female only fitness classes. It decides to exclude trans women because of the degree of physical contact involved in such classes.

Example: A gym has separate-sex communal changing rooms. There is concern about the safety and dignity of trans men changing in an open plan environment. The gym therefore decides to introduce an additional gender-neutral changing room with self-contained units

Example: A small cafe with limited space and facilities for public use has separate lockable, self-contained male and female toilets with hand basins in single units. To ensure they are fully inclusive, and to make the most effective use of the available facilities, the cafe decides to make them all gender neutral.

Example: A community centre has separate male and female toilets. It conducts a survey in which some service users say that they would not use the centre if the toilets were open to members of the opposite biological sex, for reasons of privacy and dignity or because of their religious belief. It decides to introduce an additional gender-neutral toilet. It puts up signs telling all users that they may use either the toilet for their biological sex or to use the gender neutral toilet if they feel more comfortable doing so.

If the toilets you provide for service users are also used as staff toilets, you will also need to take account of the Workplace (Health, Safety and Welfare) Regulations 1992 which require employers to provide a certain number of toilets and to provide separate toilet and washing facilities for men and women in some circumstances. Guidance can be found on the Health and Safety Executive website.

www.equalityhumanrights.com/sites/default/files/guidance-separate-and-single-sex-service-providers-equality-act-sex-and-gender-reassignment-exceptions.pdf

I am not saying these are perfect but do actual illlustrate that it isn't just about whether violent men might exploit trans inclusive spaces, but that women are entitled to a way of life that protects their dignity.

Even if the the act was changed, unless we have a whole sale change in attitudes towards women and their rights it isn't going to make any difference.

Because too many people, including some women, dont care. Another win for the MRAs.

I found the original draft codes that were put out for consultation in 2010:

web.archive.org/web/20100404121056/www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-codes-of-practice-consultation/

They were much more straightforward and workable.

(don't know whether this post will disappear because of archive link, let's find out ...)

It's one reason that I think open debate in the HoC might at least start the process of fixing the EA.

It is a mess, nobody understands nor agrees on it.

This isn't some arcane legal angels-on-the-head-of-a-pin argument - it's guidance that employers and service providers need to be really clear and easy to grasp.

And we need protection for women's single sex spaces based on biological sex.

www.mumsnet.com/talk/petitions_noticeboard/4722618-petition-to-update-the-equality-act-thread-2

The fudge has sadly been quite intentional, and it has been done to enable men without women and people with a basic grip on right and wrong kicking off.

Now, light is beginning to dawn that it's been thoroughly fucked up.

Was the public aware of the EA when it was created? To me the whole thing was based on a clear basic contradiction:

You can't have 'women' (and 'men' should anyone ever care to appropriate 'men') to mean both adult female human beings and anyone who feels like a woman, whatever that then might mean. It is simply an impossible starting point if we have any concern for individuals of the female sex and their rights.

One or the other definition must give, and, as we have seen in the recent decade, it's the older definition that is disappearing.

If being a woman is a pure choice not based on sex, so that some female people are now not women and some male people are now women, then the categories become meaningless in terms of things like single-sex facilities, sex categories in sports, women's short lists in politics, scholarships, the gathering of statistics on crime, health and so on.

I would love to see some other way of seeing these issues, but after years and years of trying I can't find any. This is a clear case of clashing rights, and no amount of trying to see it differently really works.

The only reason it was thought to work in 2010, as far as I can see, is that we were told trans people are an incredibly tiny minority, so accommodating them wouldn't affect anyone else and would greatly benefit a marginalised minority. But this is not what happened, of course, as language itself is now altered, women lose places on the podium in sports decision-making posts etc.

It's also been rather clearly proven that while sucking up all the equality legislation into one act was a nice idea, it's now failed.

What has happened is the noisest, most usefully fashionable and most affluent characteristic has come to totally dominate while eclipsing all others, and the interests of 8 other groups has been trampled in the process. Combining the briefs prevents any identifying and sorting out of clashing needs and policies that need adjusting to work for all, because the powerful lobby insists that only it matters and fuck everyone else. And that lobby frequently claims to be talking for other groups while blocking actual voices from those groups from getting a word in, because what they actually have to say is not in the best political interests of the lobby.

The act needs dismantling back into separate briefs, the responsibility of separate ministers who only represent the interests of that particular group and stand up for it in development of policy and law. And that will also mean taking TQ and LGB into two separate briefs.

Well, how could white males benefit from politics that were designed to lessen their grip on political power?

Only if they were able to identify into a less privileged group.

Imagine if well educated, white males were suddenly the most marginalised in society.

That's much clearer @LangClegsInSpace . It's exactly what I suspected then from the language in the Code; the EA is very clear, and it's the involvement of Trans Activist groups in the Code of Practice which has deliberately fudged it so they can claim any exclusion of trans-women from single sex female spaces is discriminatory.

Yes @IwantToRetire the Act itself is very clear, but it's putting the exclusions into practice alongside the very restrictive guidance in the Code of Practice that causes problems (very deliberately on the part of whichever Trans Activist groups were involved I suspect).

@ArabellaScott that's a good point, that gives me renewed motivation to email anyone I haven't yet to try and persuade them to sign.

Chris Rock got a big clap when he said similar in his latest Netflix special.

@IwantToRetire I disagree regarding Naomi Cunningham; she is an experienced discrimination law barrister (www.outertemple.com/barrister/naomi-cunningham/)

What I took from her part in the debate I saw (committees.parliament.uk/oralevidence/12639/pdf/) , which may not be the same one you're talking about, was that the exclusions are very difficult to work with in practice because service providers fear litigation; proving proportionality on a blanket ban is difficult, and excluding people on a case by case basis is equally fraught with potential for discrimination litigation.

I don't think the EA2010 is completely unworkable, I agree with @ArabellaScott single sex spaces for women need to be made mandatory at the moment the law says single sex spaces CAN be provided, but no one has to.

Single sex spaces need to be made mandatory and for biological sex only in certain cases eg hospitals, refuges, toilets. 3rd unisex toilets that are fully self contained lockable units need to be provided where possible, or eg changing rooms in shops; single sex with one or more lockable unisex unit.

13.57
If a service provider provides single- or separate sex services for women* and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.
However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo,* is undergoing or who has undergone gender reassignment...

This is really arse about face.

It implies single-sex services are really single-gender, but it's sometimes ok to exclude trans people.

No, single-sex services are just that, and it should always be ok to exclude the opposite sex!

(Sorry for the mess with asterisks and bolding!)

Single sex spaces need to be made mandatory and for biological sex only in certain cases

If a space is labelled single sex then it has to be for biological sex only.

If it's categorising on the basis of gender then that needs to be made very clear and its mixed sex/unisex status should be clear.

What is absolutely unacceptable is this halfway mangled pretend 'safe space' pish that uses the words 'women' and 'female' but actually means 'anyone'. It's cynical, dangerous, and insulting to women. It means those who are tasked with women's safety, privacy and dignity get to pretend they are ever so kind while ignoring the very real needs of the people they are supposed to serve and shifts the onus onto women who are by definition in a state of vulnerability in hospital, dv shelter, changing room, etc, to somehow take on the sophistry and bullshit of queered genderist nonsense and try to wrest back the rights their foremothers fought so hard for.

Quite. Stuff 'case by case'.

Mixed sex/gender neutral/do what you want and enjoy

Single sex female only spaces. Men can sort out what they want, I've got enough to do.

No more bloody confusion about how much cosmetic surgery, medication and wishful thinking is required for a person to turn into the opposite sex. That's what caused this mess in the first place, and female only spaces are solely about meeting the needs of females. Not males.

IDK if this will help or not. Again, this was written without interference;

Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission (Published 30 July 2019)
7 Balancing rights in single-sex services
Exception allowing single sex services to discriminate because of gender re-assignment
The third exception (Schedule 3, paragraph 28) allows providers of separate or single-sex services to provide a different service to, or to exclude, someone who has the protected characteristic of gender reassignment. This includes those who have a Gender Recognition Certificate (GRC), as well as someone who does not have a GRC but otherwise meets the definition under the Equality Act 2010.

162. On this interpretation of the legislation, a service is single-sex whether or not it includes trans women. If providers of such single-sex services have reason not to admit a trans person (including a person who has a Gender Recognition Certificate), they should be using the exception allowing providers of single-sex services to discriminate because of gender re-assignment.

189.We asked the Equality and Human Rights Commission, whose Equality Act Code of Practice on Goods and Services currently contains the most significant guidance on the operation of the exceptions available to providers of single-sex services, if they felt that current law and guidance was sufficient. Melanie Field told us that she was confident that the Equality Act provisions “are fit for purpose” as “[t]hey allow inclusion and also allow exclusion when it is objectively justified and there is a good reason for it.” She did, however believe that people would welcome more information “about how that plays out in practice”, which would also help ensure that “misconceptions, misunderstandings and genuine fears and concerns” do not promote a climate of intolerance and damage good relations between groups.

190.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.

publications.parliament.uk/pa/cm201719/cmselect/cmwomeq/1470/147010.htm

So the intention of the code of practice was to make it clear that service providers could provide services on the basis of sex, and when that would be legal.
Instead it has just muddied the waters even further.

EHRC rejected this recommendation at the time:

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.

publications.parliament.uk/pa/cm201919/cmselect/cmwomeq/96/9604.htm

But it's been all change at EHRC since then with new people in charge. I'm sure they said something about new stat code shortly after they published the new guidance.

I suppose a first step might be to write and ask them.

This is from my submission to the above EA consultation:

The Equality Act is a huge, complex piece of legislation replacing several older acts. It is impossible for lay people to navigate so employers, service providers etc. as well as the general public, are very reliant on guidance, including the Statutory Code produced by EHRC.

Unfortunately, this Statutory Code does not uphold women's sex based rights. For example:

Schedule 3, part 7, para 28 states:

(1)A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2)The matters are—

(a)the provision of separate services for persons of each sex;

(b)the provision of separate services differently for persons of each sex;

(c)the provision of a service only to persons of one sex.

The explanatory notes state:

Effect

739.This paragraph contains an exception to the general prohibition of gender reassignment discrimination in relation to the provision of separate- and single-sex services. Such treatment by a provider has to be objectively justified.

Background

740.This paragraph replaces a similar provision in the Sex Discrimination Act 1975.

Example

A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

However, the Statutory Code (services, public functions and associations) adds an additional requirement. In order to use this single sex exception, not only does a service provider have to be able to show it is a proportionate means to achieving a legitimate aim, but must also only apply the policy on a case-by-case basis (page 198):

13.60 - As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances.

The effect of this additional requirement is that if a women-only service wishes to use this exception and is legally challenged by a trans woman, the case becomes personal.

The test is no longer whether it's justified and proportionate for women to have female only space in a specific circumstance. The test is now whether this particular trans woman is 'woman enough' for female service users to be expected to turn a blind eye to their maleness and accept them personally into what was a female only space.

'Case by case' means that no-one has the right to run women only services any more. You can have it as a policy but 'case by case' overrules your policy so you can never guarantee female only space to your service users.

A lot of commentators, including EHRC themselves IIRC, have said that 'case by case' means setting-by-setting or service-by-service but looking at the wording of the code, that doesn't make sense:

A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances.

The wording is dire, and that could be argued to mean a specific individual (which is unworkable, as we know, because not fair and discrimination that one individual of that characteristic can but that one can't, so if it's yes to one it's yes to all) or to mean that whether the presence of any transsexual person would impact upon the purpose and provision of the group to the point it is reasonable to protect the space.

All this relies on the jolly good chap principle. And men are not going to be jolly good chaps, this has now been destruction tested. So there needs to be explicit language and clear boundaries, regardless of the fact that unfudging it will cause screaming abdabs.

I suspect that wording also relied on the original plan of the GRA which was tiny numbers, so only a very occasional one single T person requesting to access a women's service.

They didn't foresee entire herds of male people identifying into everywhere and absolutely all women's services being targeted purposefully by male people using their wording, causing an absolute binfire of women being excluded and harmed in women's services. See: jolly good chap principle. Also see: that idea now fucked beyond all hope of repair.