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?