Advice to service providers who want to provide female-only changing rooms

Female-only changing rooms are lawful

This guidance highlights the relevant sections in UK law to help service providers who offer changing room facilities to their customers. There is little in the way of established case law for businesses to rely on, so instead this guide sets out the legal framework with reference to the approved legal text of the Equality Act 2010 and explanatory notes.  We also highlight where relevant any guidance published by the Equality Human Rights Commission (EHRC) in the form of statutory code. Statutory code is not an authoritative statement of the law; only the tribunals and the courts can provide such authority.

 

What does female-only mean?

Under UK law there are 2 sexes; male and female. ‘Female-only’ means restricting the service to members of the female sex only and excluding members of the male sex. Your legal sex class is what’s written on your birth certificate.

 

Why isn’t it unlawful to discriminate against males by excluding them from a female-only changing room?

Although direct discrimination on the grounds of sex, just like other all protected characteristics, would normally be considered against the law there are exceptions that makes some forms of sex discrimination lawful when there is a good reason for doing it.

Good reasons can include when a woman might reasonably object to the presence of a man. Separate male and female changing rooms are used as an example in the explanatory notes of the Equality Act.

 

 

Do the single-sex exemptions also apply to transgender people?

Yes, everyone under UK law has a legal sex classification of either male or female. This is not the same as someone’s gender identity. Unless someone has legally changed the sex written on their birth certificate then their legal sex classification remains the sex they were born.

Trans people are also covered under Equality law by the protected characteristic of gender reassignment but this does not change their legal sex classification (as confirmed in statutory code section 2.56). Legal sex classification can only be changed under a different piece of UK law called the Gender Recognition Act 2004. There are currently fewer than 5000 people in the UK who have legally changed sex classification using the GRA 2004.

This means that in the overwhelming majority of cases a person who was born male but now identifies as a woman (colloquially known as a transwoman) is still a member of the male sex for all legal purposes.

Lack of understanding of this distinction has caused much confusion and so the EHRC published a statement in July 2018 to confirm the above interpretation:

Under the Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. 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, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.

 

How do the sex discrimination exceptions apply to trans people without a GRC?

A transwomen without a GRC is legally male and therefore it is lawful to discriminate against them on the grounds of their male sex and exclude them from female-only changing rooms. The law applies to all males irrespective of any other protected groups they are also members of.

How do the sex discrimination exceptions apply to trans people with a GRC?

A transwomen with a GRC is legally female so the sex discrimination exception defined by Schedule 3, Part 7, Section 26/27 does not apply to them.

However, the Equality Act acknowledges that there is a meaningful difference between people who have acquired their legal female sex status by birth (women) compared to those who have acquired it under the GRA 2004 (transwomen). As such there is an additional section in the Equality Act that applies to transwomen with a GRC.

Part 7 Section 28 sets out a lawful exception to gender reassignment discrimination.

This means it is lawful to discriminate against transwomen with a GRC on the grounds of gender reassignment and exclude them from female-only changing rooms. There are only 5000 people in the UK with a GRC so this section of the Equality Act would rarely be invoked.

 

 

Use of the single-sex exemptions must always be objectively justified. What does this mean?

Objectively justified means you can only invoke the sex discrimination exceptions if there is a good reason for doing so. This means you need to be able to show that providing a changing room just for the female sex is a proportionate means to achieving a legitimate aim. This is explained in more detail in the EHRC Statutory Code:

What is a legitimate aim?

5.28 The aim of the provision, criterion or practice should be legal, should not be discriminatory in itself, and it must represent a real, objective consideration.

5.30 Examples of legitimate aims include:
• ensuring the health and safety of those using the service provider’s service or others, provided risks are clearly specified;
• preventing fraud or other forms of abuse or inappropriate use of services provided by the service provider; and
• ensuring the well-being or dignity of those using the service.

 

What is proportionate?

5.31 Even if the aim is a legitimate one, the means of achieving it must be proportionate. Deciding whether the means used to achieve the legitimate aim are proportionate involves a balancing exercise. A court may wish to conduct a proper evaluation of the discriminatory effect of the provision, criterion or practice as against the service provider’s reasons for applying it, taking into account all the relevant facts.

 

Legitimate Aims: What are the good reasons why some women might want and need female-only changing rooms?

a) Physical safety:

Biological sex is one of the most reliable predictors regarding the risk of physical and sexual violence. Put simply, physical and sexual violence is overwhelmingly perpetrated by males and the victims are overwhelmingly female. This is why access to male-free space is important to women.

The fact that males commit most sexual and physical violence is reflected in the prison population figures. Official figures published by the Ministry of Justice reveals there are appropriately 80,000 males in prisons in England and Wales, compared to only 4000 women. There are currently 14,000 males in prison for sexual offences, compared to only 128 females.

Women were significantly more likely to have experienced sexual assault than men. Victims of indecent exposure and unwanted sexual touching are more likely to be women, see HERE.

A recent study has shown that reports of sexual incidents are at least 10 times more likely in mixed-sex changing rooms compared to single-sex changing rooms.

Not all males present a risk to females, but some do and it is not possible for women to reliably determine which individual males do present a risk when they first encounter a stranger.

There is also no evidence that the level of risk posed to a female is reduced if a male person identities as a women. There is evidence however that male-born transgender people retain a male-like pattern of criminality, see HERE and HERE. Moreover, the vast majority of male-born transgender people retain their penis, see HERE.

For all these reasons, providing women with a totally male-free space while they are undressing is a simple, effective and common-sense safeguarding policy.

 

 

b) Voyeurism:

Sexual offences do not always have to involve physical contact. Being spied on by males while undressing is a serious problem that some females can fall victim to and even more worry about. Concealed peep holes and any gaps between curtains, floor or ceiling make it easy for males to spy on females without them knowing. Privacy cannot even be guaranteed by using fully enclosed individual changing spaces due to the easy availability of cheap miniature cameras.

 

 

 

 

 

c) Psychological well-being:

The Crime Survey for England and Wales published by the Office for National Statistics estimated that 20% of women have experienced some type of sexual assault since the age of 16, equivalent to an estimated 3.4 million female victims.

This means that a large proportion of your female customers will have a history of sexual trauma. It is quite reasonable to expect these women would prefer to choose a male-free space when they feel vulnerable, such as when partially dressed or naked.

The impact of your changing room policy on this group of women should be considered alongside the fact that the vast majority of males who identify as women retain their penis, HERE.

 

d) Religious belief:

Some forms of Christianity, Judaism, Islam and other religions have strict rules that require females to be covered in the presence of males. Female-only changing rooms are necessary for these women and without them they would not be able to access the service you are providing.

 

Proportionate Means: What can I do to limit the impact of female-only changing rooms on transgender people?

EHRC’s statutory code states:

5.35 The more serious the disadvantage caused by the discriminatory provision, criterion or practice, the more convincing the objective justification must be.

The sex discrimination exceptions invoked for female-only changing rooms apply to everyone born male, however the impact may be differ between different groups of males. Where possible your overall changing room policy should minimise the impact on others while still achieving the legitimate aim of providing a female-only space.

For example, if possible you may also wish to offer an alternative changing room open to both sexes, alongside your male and female single-sex changing areas. This alternative means transwomen do not have to use the male changing rooms if they do not wish to.

Alternatively, you could consider changing the use of your male-only changing rooms into a mixed-sex changing area*. These changing rooms would be open to everyone of either sex and any gender identity. Your female-only changing rooms would remain for the female sex only, so that women always have the option to choose the privacy and safety of a male-free space. This is a simple practical solution that meets the different needs of everyone and requires no additional changing room provision which may be an important consideration when space is limited.

*It can be clearly argued that females have a greater need for single-sex changing rooms compared to males. The objective justification for invoking the single-sex exceptions and excluding the opposite sex is stronger for females than for males. However, it should also be noted that direct discrimination law works in such a way that if you offer females single-sex changing then you should not treat males less favourably. To avoid a direct discrimination claim by men you may wish to provide some single-sex changing for males also. For direct discrimination to apply it is enough that a man could say he would have preferred not have have been treated differently (objective justification does not apply).

 

How can I show that I have carefully balanced the needs of all my customers?

Public Authorities have a legal responsibility to assess their activities, and to set out how they will monitor any possible negative impact on equality. Private organisations are under no legal obligation to do this but may wish to ensure they can objectively justify their policy should they ever be challenged by performing an Equality Impact Assessment (EIA).

The purpose of the EIA to make sure individuals and teams think carefully about the likely impact of a policy on all service users. It focuses on systematically recording the likely impact of a policy by assessing and anticipating the impact on people with each of protected characteristics set in the Equality Act. It’s easy to do and provides a clear and structured way to document the legitimate reasons for your policy, supported by any evidence relevant to your specific circumstances. This way you can be sure that your policy balances the needs of all your customers in the fairest possible way.

In cases of dispute, ultimately whether an action is a proportionate means of achieving a legitimate aim will be determined by the courts. There are no black and white rules on what can be objectively justified because it will always depend on the exact nature and context of the service you offer and the users of your service.

 

 

How do I operate my female-only changing room policy?

It’s a well established custom in the UK that people use the changing rooms appropriate to their sex. However, in order to uphold your lawful policy of providing women with a female-only changing room it may sometimes be necessary for staff to deny access to a male person. We instinctively know who’s male and female simply by looking which makes it quick and easy for staff to spot if a male person enters a female changing room.

To uphold your single-sex changing room policy you can reserve the right for staff to discreetly ask for additional information before using the service you are providing. The only legal document that confirms someones legal sex is a birth certificate. All other common forms of ID, including passport and driving licence, can now be updated on request to show someone’s self-declared gender identity so can no longer be used for the purposes of confirming legal sex class.

In a tiny number of cases (less than 5000 in the UK) a transgender person may have changed the sex classification on their birth certificate. Whilst it is lawful to exclude this person from a female-only changing room on the grounds of gender reassignment (part 7 Section 28) it is virtually impossible to implement this legal exception in practice. This is because the birth certificate of someone who has legally reassigned their sex to female is indistinguishable from the birth certificate of someone who was born female. There is nothing additional that staff can ask to see that would confirm someone was actually born the sex written on their birth certificate and thus confirm their eligibility to enter a female-only changing room.

Make sure staff know to only ask to see a birth certificate to confirm someones legal sex and never to ask to see a Gender Recognition Certificate. When someone has acquired a GRC the fact that they have legally reassigned their sex is considered ‘protected information’. This means that while it is perfectly lawful for staff to ask to see a GRC, as soon as this information is revealed to staff it then becomes a offence for that staff member to disclose this to any other person. It is best to avoid this particular litigation risk by simply never asking to see the GRC.

In summary, admission to female-only changing rooms should be based first on a visual assessment of someones sex, followed by a request to see a female birth certificate in circumstances where staff reasonably suspects that the person was born male. In that instance, if a female birth certificate cannot be produced then in order to uphold your lawful policy of providing women with a female-only changing space it is reasonable to tell that individual they are not permitted to the use the female-only facilities. They should be offered mixed-sex provision instead.

 

 

Note: If the GRA2004 is updated (as currently supported by all 3 major political parties) and eligibility criteria is relaxed this is likely to result in significantly more transgender people obtaining a GRC. This would make it more difficult to uphold the sex discrimination exceptions in practice. More information about how changes to the GRA2004 may impact use of the sex discrimination exceptions can be found HERE.

 

Why not just provide gender neutral changing rooms?

‘Gender neutral’ changing rooms may sound modern and progressive but it’s not – it just means mixed sex. Although a mixed-sex changing room policy avoids the need to directly discriminate on the grounds of sex it is not a neutral policy choice.

Females can be uniquely vulnerable (physically, sexually, psychologically and/or religiously) when partially dressed or naked compared to males. Combined with the fact that females will commonly make up at least half of your customer base this represents a significant litigation risk.

 

a) Indirect discrimination claims:

Mixed-sex changing rooms may constitute indirect discrimination because it puts members of the females sex at a particular disadvantage compared to members of the male sex (e.g. females are more likely to be spied on compared to males). There could also be indirect discrimination claims on the ground of religious belief because some women would be prevented from using your changing rooms if their religion says they must not uncover in the presence of males. No improper conduct has to actually occur. It is enough for a woman to have been unfairly deterred from using the service you provide because of your changing room policy.

 

b) Sexual harassment claims:

A changing room policy that facilitates unwanted conduct of a sexual nature by another person could lead to a claim against your organisation for sexual harassment. A sexual attack does not have to happen for harassment to have occurred.  It is sufficient that the policy has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity.

 

 

c) Assisting a criminal offence and public liability claims:

If woman suspects a criminal act is being committed in the changing rooms it would be reasonably for her to call the police.

The law is untested and liability is unclear. However, sexual offences such as exposure and voyeurism are criminal acts and it could be argued that a changing room policy that allows unregulated access of males into spaces where women are performing the private act of undressing could be encouraging or assist an offence to be committed.

Even if criminal liability cannot be proven there remains the risk of a public liability claim being brought against your company if a women is injured while using your changing rooms (injury can include psychological trauma and injury to feelings). As a service provider you have a duty of care to your customers and would be expected to take reasonable steps to ensure the premises are safe.

You may wish to discuss with your public liability insurance provider whether unregulated access to an open, communal changing space would negate your cover in the event of a claim for damages.

 

 

Conclusion

Female-only changing rooms are lawful and achieves the legitimate aim of providing the safety and privacy that women want and need when they are in a state of undress.

Special exceptions exist in the Equality Act to allow service providers to lawfully exclude members of the male sex from female-only spaces.

All males can be lawfully excluded, even members of the male sex who self-identify as women and even males who have legally transitioned to female.

To minimise the impact on transgender customers you can provide a mixed-sex changing area in addition to your female-only changing area.

By not providing a female-only changing area may be at risk of litigation.

 

 

 

 

 

 

 

 

Leave a Reply

Your e-mail address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.