On 4th April 2022 the Equality and Human Rights Commission published its long-awaited practical guidance to providers of single- and separate-sex services.
The guidance confirms that 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. For such a policy to be lawful it must be a “proportionate means of achieving a legitimate aim“. The EHRC confirmed that a legitimate aim could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety.
The guidance includes a number of practical examples and emphasises the need to “balance the different interests and needs” of all service users, including those of women. The EHRC’s view is that a policy is likely to be lawful if the impact on trans people of exclusion is outweighed by the impact on the other users if they were included.
On the same day the EHRC published its guidance, Karon Monaghan QC published a thread on twitter about the EHRC’s guidance. She concluded the guidance “faithfully reflects the law“.
EHRC “faithfully reflects the law”
Karon Monaghan QC is a barrister at Matrix Chambers and principally specialises in equality and human rights law. She literally wrote the book on Equality law (Monaghan on Equality Law) and is an A Panel member of the Equality and Human Rights Commission Panel of Preferred Counsel. The Monaghan thread is therefore a valuable contribution towards public understanding and a useful accompaniment to the EHRC guidance for service providers.
You can read the original twitter thread here. We have also assembled the full text below, with sub-headings in bold, for easy reading.
Transcript of Karon Monaghan QC’s opinion on EHRC Single-sex services guidance:
EHRC SSS Guidance:
Given the discussion that has followed the publication of the EHRC’s guidance on single sex spaces & services (SSS), I thought it would be helpful to set out what the Equality Act (EA) says.
This is a (long) thread on what the law IS. Some will think the law should not be as it is. The answer to that is to seek to change the law, not to seek – even innocently, inadvertently & in good faith – to present an erroneous account of the law. It helps no one: those who want law change need to understand what the law currently is, & those seeking to operate SSSs need clarity.
Some basic concepts for those not familiar with the EA (many on here will be):
The protected characteristic of sex:
Sex is defined in binary terms. Men & women are biological males & females, respectively (s.11, 212, For Women Scotland v The Lord Advocate & A’or).
The protected characteristic of Gender Reassignment:
A trans person (the EA uses the term ‘transsexual’) is a person who is ‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex’ (s.7) (‘GR’). The concept of GR under the EA is predicated on a binary concept of sex (‘reassigning the person’s sex’) & does not protect eg. non-binary or gender fluid people (the non-binding decision in Taylor v Jaguar is wrong). The meaning given to GR is wide – covering people who have not yet begun the process of transitioning as well as those who have completed it.
Ss.13 and 19 define direct & indirect discrimination respectively, and they cover both sex & GR. These forms of discrimination are made unlawful in some contexts (eg employment, services).
Direct discrimination occurs where a person is subject to less favourable treatment because of sex or GR.
Indirect discrimination occurs where a body applies a provision, criterion or practice (PCP) to everyone within a relevant cohort that disadvantages a particular class, where that PCP is not justified.
SINGLE SEX SERVICES:
Direct discrimination on the grounds of sex:
SSSs will of necessity be directly discriminatory as against the excluded sex (exceptions are conceivable but ignored for present purposes). However, a SSS is permitted where it pursues a legitimate aim & is proportionate (Sch.3 Pt 7).
In the case of women’s SSSs (I use these- and trans women (TW) – as the paradigm since that is where the controversy lies), legitimate aims might be privacy, dignity, prevention of trauma, distress etc. Whether excluding men from women’s SSSs is a proportionate means of achieving a legitimate aim, will require that the impact of exclusion on women & alternately men is weighed & balanced.