The Equality Act 2010 legally protects people in the UK from discrimination and is often used by trans-activists to claim that trans-identifying males must always be treated as, or allowed into spaces exclusively for, women. It is also often used as a reason by companies when women complain. They say their hands are tied and that it’s illegal to exclude transgender people. They are simply wrong. They are either shamefully ignorant of the law or deliberately deciding not to use the legal options available to them.
This article will set out the exemptions in law that are designed to protect single-sex provision for women. I am not a lawyer and I offer no legal interpretation of the law. However, the Equality Act 2010 is available on-line for anyone to read and it is accompanied by official explanatory notes.
There is also official guidance published by the Equality and Human Rights commission. The EHRC is an independent statutory body with the responsibility of overseeing and enforcing the Equality Act. Some of its guidance is in the form of statutory code. This code has been approved by parliament and is designed to assist courts and tribunals when interpreting the law and to help lawyers, advisers, trade union representatives, human resources departments and others who need to apply the law.
Some guidance is in the form of non-statutory technical guidance. While technical guidance is not a statutory Code of Practice, it can be used as evidence in legal proceedings. The courts have said that a body subject to the equality duty that does not follow non-statutory guidance such as this will need to justify why it has not done so. However, such guidance does not in itself impose further duties to those set out in the statute.
In this article I will present sections of the Equality Act relevant to women-only spaces accompanied by the Act’s explanatory notes and an official guidance published by the EHRC. You will then have the facts at your own finger tips and you can decide for yourselves what the law really says.
“My own unofficial commentary will be indicated like this to help guide you through the article”
Quick jump to:
What is Equality Law?
The Equality Act 2010 is the main piece of law in England, Wales and Scotland to protect particular groups from disadvantage or unfair treatment. Equal opportunities and discrimination are “transferred matters” under the Northern Ireland Act 1998. As such, with a few exceptions the Act does not form part of the law of Northern Ireland.
There are nine ‘protected characteristics’ and three forms of ‘prohibited conduct’. A protected characteristic means someone is entitled to legal protection on the grounds of a particular feature, for example their sex. There are five specific areas or activities covered by different parts of the Act. Anti-discrimination laws do not cover anything else you do or plan to do. Private activities are NOT covered by these anti-discrimination laws.
|Protected characteristics:||Prohibited conduct:||Activities:|
|Age||Discrimination||Services and public functions|
|Marriage and Civil partnership||Education|
|Pregnancy and Maternity||Associations|
|Religion and belief|
The protected characteristic of sex:
54. This section is a new provision which explains that references in the Act to people having the protected characteristic of sex are to mean being a man or a woman, and that men share this characteristic with other men, and women with other women.
2.55 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and/or boys, or women and/or girls.
2.56 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment or sexual orientation.
“Sex is clearly described here using the commonly accepted words man and women. A woman must not be discriminated against compared to a man based on her biological sex. If a transgender person does not possess a gender recognition certificate then their legal sex is still the same as their biological or birth sex”
The protected characteristic of gender reassignment:
41. This section defines the protected characteristic of gender reassignment for the purposes of the Act as where a person has proposed, started or completed a process to change his or her sex. A transsexual person has the protected characteristic of gender reassignment.
42. The section also explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.
43. This section replaces similar provisions in the Sex Discrimination Act 1975 but changes the definition by no longer requiring a person to be under medical supervision to come within it.
2.21 This broad, non-medical definition is particularly important for gender variant children: although some children do reassign their gender while at school, there are others who are too young to make such a decision. Nevertheless they may have begun a personal process of changing their gender identity and be moving away from their birth sex. Manifestations of that personal process, such as mode of dress, indicate that a process is in place and they will be protected by the Act.
2.22 The Act requires that a person should have at least proposed to undergo gender reassignment. It does not require such a proposal to be irrevocable. People who start the gender reassignment process but then decide to stop still have the protected characteristic of gender reassignment.
2.26 Gender Recognition Certificates: The Gender Recognition Act 2004 (GRA) provides that where a person holds a gender recognition certificate they must be treated according to their acquired gender.
3.20 The way in which school facilities are provided can lead to discrimination. Example: A school fails to provide appropriate changing facilities for a transsexual pupil and insists that the pupil uses the boys’ changing room even though she is now living as a girl. This could be indirect gender reassignment discrimination unless it can be objectively justified. A suitable alternative might be to allow the pupil to use private changing facilities, such as the staff changing room or another suitable space.
3.35 A previously female pupil has started to live as a boy and has adopted a male name. Does the school have to use this name and refer to the pupil as a boy? Not using the pupil’s chosen name merely because the pupil has changed gender would be direct gender reassignment discrimination. Not referring to this pupil as a boy would also result in direct gender reassignment discrimination.
“The definition of Gender Reassignment is extremely broad and covers someone as soon as they propose to undergo a process to change sex. This ‘process’ is a personal one and is not clearly defined but it may or may not include bodily changes. Gender reassignment surgery or a gender recognition certificate is not required for someone to be protected under Gender Reassignment or to be termed a transsexual. All people (including children) covered by gender reassignment are collectively described by the term ‘transsexual people’. This definition also covers young children who socially transition. In the context of the Act the term transsexual is used whereas most people would now use the word transgender. Even if a child is too young to know what reassigning gender means they will still be covered because they have started their ‘personal process’. ECHR schools guidance indicates that mis-gendering a pupil who identifies as transgender and/or insisting they using single-sex spaces according to their birth sex would be discriminatory. Interesting however, it does not state that they must be allowed access into the opposite single-sex space. It can be enough to simply provide an alternative space for them”.
There are six main areas set out in the Equality Act 2010 that acknowledge the need for women-only spaces, services, roles and activities and makes it lawful to exclude males (including trans-identifying males). In all cases the use of an exemption must be a proportionate means to achieve a legitimate aim. There are no blanket rules since each situation must be considered on its own merits and due regard must be given to all groups affected by invoking the exemption. The least discriminatory option must always be chosen.
applicable to SERVICES & PUBLIC FUNCTIONS (Part 3 Section 29: Provision of services)
applicable to WORK (Part 5 Chapter 1: Employment)
applicable to all parts of the act
applicable to all parts of the act
applicable to ASSOCIATIONS (Part 7)
(applicable to political parties only)
*section 29 is provision of services & sections 33-35 relate to disposals & management of premises.
614. This section allows separate sporting competitions to continue to be organised for men and women where physical strength, stamina or physique are major factors in determining success or failure, and in which one sex is generally at a disadvantage in comparison with the other. It also makes it lawful to restrict participation of transsexual people in such competitions if this is necessary to uphold fair or safe competition, but not otherwise.
“A gender-affected activity is a sport, game or other activity of a competitive nature in circumstances in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex as competitors in events involving the activity. The fact that transgender people can also be lawfully excluded from a gender-based activity means that their biological sex is the key attribute that must be considered rather than their gender identity or legal sex acquired through a GRC”.
*the provisions in sub-paragraph 2 refer to employees, contract workers, partnerships and private and public office holders
787. This paragraph provides a general exception to what would otherwise be unlawful direct discrimination in relation to work. The exception applies where being of a particular sex, race, disability, religion or belief, sexual orientation or age – or not being a transsexual person, married or a civil partner – is a requirement for the work. The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim.
|Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.|
|Unemployed Muslim women might not take advantage of the services of an outreach worker to help them find employment if they were provided by a man.|
|A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.|
13.8 Examples of how the occupational requirement exception may be used include some jobs which require someone of a particular sex for reasons of privacy and decency or where personal services are being provided. For example, a unisex gym could rely on an occupational requirement to employ a changing room attendant of the same sex as the users of that room. Similarly, a women’s refuge which lawfully provides services to women only can apply a requirement for all members of its staff to be women
“Concepts such as privacy and decency, cultural, psychological or religious sensitivities and the provision of personal services are clearly acknowledged as reasons why a woman may not want a biological male member of staff. Companies are allowed to accommodate these needs by choosing to specifically employ only a biological female for the role. Importantly, it is made clear that having a female gender identity and/or acquiring a new legal status as female does not make a biological male eligible for a woman-only post”.
997. This paragraph provides an exception to the general prohibition of sex and gender reassignment discrimination. It allows communal accommodation to be restricted to one sex only, as long as the accommodation is managed as fairly as possible for both men and women. It sets out factors which must be considered when restricting communal accommodation to one sex only, and provides that discriminatory treatment of transsexual people must be objectively justified.
998. Communal accommodation is defined as residential accommodation which includes shared sleeping accommodation which should only be used by members of one sex for privacy reasons.
|A hostel only accepts male guests. It is not unlawful for it to refuse to accept female guests because the majority of the bedrooms are shared and there is only one communal bathroom.|
“Again the concept of privacy is acknowledged as a reason why men and women would expect to have separate facilitates for communal sleeping and/or sanitary arrangements. The need for privacy is clearly based on men and women being of a different biological sex. The fact that transsexual people can be included in this exemption acknowledges that their biological sex is not the same as gender identity or a newly acquired legal sex status”
*section 29 is provision of services
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.
|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.|
“It is clear that the biological sex of a trans-identifying male can be considered relevant when deciding if they should have access to a women-only space or service. It must be objectively justified which means due regard must be given to identify the least discriminatory outcome overall for both the women and transgender person(s) affected”
Summary of lawful single and separate sex services for men and women:
|Separate-sex services are lawful if:||Examples provided in explanatory notes:||Examples provided in Statutory code for Services, public functions and associations|
|Combined service would not be as effective||It would not be unlawful for a charity to set up separate hostels, one for homeless men and one for homeless women, where the hostels provide the same level of service to men and women because the level of need is the same but a unisex hostel would not be as effective.|
|Single-sex services are lawful if:|
|Only people of that sex require it||A cervical cancer screening service to be provided to women only, as only women need the service||Post-natal exercise classes can be provided to women only, since only women need the service.|
|There is joint provision for both sexes but that is not sufficient on its own||A fathers’ support group to be set up by a private nursery as there is insufficient attendance by men at the parents’ group|
|If the service were provided for men and women jointly, it would not be as effective and it is not reasonably practicable to provide separate services for each sex||A domestic violence support unit to be set up by a local authority for women only but there is no men-only unit because of insufficient demand|
|They are provided in a hospital or other place where users need special care, supervision or attention (or in parts of such an establishment)||Separate male and female wards to be provided in a hospital||Single-sex wards in hospitals and nursing homes and single-sex facilities in mental health facilities.|
|They may be used by more than one person and a woman might object to the presence of a man (or vice versa)||Separate male and female changing rooms to be provided in a department store||Separate male and female changing rooms or any service involving intimate personal health or hygiene.|
|They may involve physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex||A massage service to be provided to women only by a female massage therapist with her own business operating in her clients’ homes because she would feel uncomfortable massaging men in that environment||Sports sessions involving a high degree of physical contact such as judo or self-defence classes.|
“Examples involving privacy, physical contact and intimate care are clearly acknowledged as reasons why a woman may not want the presence of a biological male in some instances. However, exclusion from a women-only space or service is likely to have a greater adverse impact on a transgender-identifying male compared a non-transgender male. For this reason, the adverse impact on women using the service or space will need to be shown to be correspondingly higher to justify the exclusion of trans-identified males and not just non-transgender males”
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 aim.
|A clothes shop has separate changing areas for male and female customers to try on garments in cubicles. The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles.|
13.58 The intention is to ensure that the transsexual person is treated in a way that best meets their needs. Service providers need to be aware that transsexual people may need access to services relating to their birth sex which are otherwise provided only to people of that sex. For example, a transsexual man may need access to breast screening or gynaecological services. In order to protect the privacy of all users, it is recommended that the service provider should discuss with any transsexual service users the best way to enable them to have access to the service.
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 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.
“This statutory code indicates that the default position should be to prioritise a persons gender identity over their biological sex when it comes to deciding whether to allow access to a women-only space or service. Interesting, how well a transgender person ‘passes’ should also be taken into consideration. This is presumably because if women do not realise a biological male is present this will limit the adverse psychological impact on those women. However, this does not acknowledge the increased physical risk to women when in the presence of a biological male, increased further when the women is unaware of their presence. This guidance also advises that any policy on the exclusion of transgender people should be considered on a case-by-case basis so that individual circumstances can be taken into account. This is clearly not going to be practical in all instances”
*sections 101 & 102 refers to membership and guests of associations
345. …. defines an association as a body with 25 or more members where access to membership is controlled by rules and involves a genuine selection process based on personal criteria.
|A book club run by a group of friends which has no formal rules governing admittance or whose membership is less than 25 is not an association for the purposes of this Part and it not subject to equality legislation.|
329. ….it [is] unlawful for an association to discriminate against, harass or victimise an existing or potential member, or an associate. This means that an association cannot refuse membership to a potential member or grant it on less favourable terms because of a protected characteristic. It does not, however, prevent associations restricting their membership to people who share a protected characteristic.
“Women-only associations and clubs are lawful under equality law and can restrict membership exclusively people of the same sex. This means a biological male who identifies as a women but is legally male would not be eligible for membership. It is not clear whether a trans-identified male whose legal status is female (having acquired a GRC) shares the protected characteristic of sex with biological females”
335. This section allows registered political parties to make arrangements in relation to the selection of election candidates to address the under-representation of people with particular protected characteristics in elected bodies.
336. These arrangements can include single-sex shortlists for election candidates, but not shortlists restricted to people with other protected characteristics. With the exception of single-sex shortlists, arrangements made under this section must be a proportionate means of reducing under-representation.
337. This provision applies to the selection of candidates in relation to elections to Parliament, local government, the European Parliament, the Scottish Parliament and the National Assembly for Wales.
|A political party can have a women-only shortlist of potential candidates to represent a particular constituency in Parliament, provided women remain under-represented in the party’s Members of Parliament.|
|A political party cannot shortlist only black or Asian candidates for a local government by-election. However, if Asians are under-represented amongst a party’s elected councillors on a particular Council, the party could choose to reserve a specific number of seats for Asian candidates on a by-election shortlist.|
“The Equality Act clearly sets out that political parties can use all women shortlists to address under representation. This is based on women having the shared protected characteristic of sex. A trans-identifying male with a female gender identity but no GRC is still legally male and as such does not share the protected characteristic of sex with women. It is unclear whether acquiring the legal status of female via GRC would make them eligible for inclusion. The Act also describes how other under-represented groups (for example transgender people who share the protected characteristic of gender reassignment) can also be addressed by positive discrimination but this can only be by reserving places on shortlists. All women shortlists are uniquely positioned in the Act to make it lawfully to restrict political shortlists only to people who share the protected characteristic of the female sex. It does not make it lawful for associations who are not political parties to restrict selection to one group only or does not allow political parties to use all women shortlists for purposes other that the selection of election candidates. It may be argued that by allowing a trans-identifying male (without a GRC) onto an all women shortlist means it is not longer restricting selection to people with a shared characteristic of sex. As such, this may be discriminatory to non-transsexual males unless they are also allowed to be selected”.
All types of business, associations and organisations must comply with the UK equality law to avoid discriminatory practices. However, the public sector must not only comply with the law but it also has a legal obligation to positively promote equality.
A public body must, in the exercise of its functions, have due regard to the need to:
|(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act|
|(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. This means actively removing or minimising disadvantages suffered by people due to their protected characteristics. Taking steps to meet the needs of people from protected groups where these are different from the needs of other people. Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low|
|(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. This involves having due regard, in particular, to the need to tackle prejudice and promote understanding. For example, a public body provide staff with education and guidance, with the aim of fostering good relations between its transsexual staff and its non-transsexual staff|
Technical guidance on PSED has been published by the EHRC and I have summarised the main considerations in the table below:
|An assessment must be made of any adverse impacts on all affected groups.||The duty means that the potential impact of a decision on people with different protected characteristics is always taken into account and minimised before a policy is adopted. If there is more than one group to consider in terms of equality then due regard should apply to all groups affected. This is a mandatory relevant consideration and will involve having due regard to the need to take steps to gather relevant information.|
|Decisions must be evidence-based||Adequate and accurate equality evidence, properly understood and analysed, is at the root of effective compliance with the general duty. Without it, a body subject to the duty would be unlikely to be able to have (or demonstrate it has) due regard to its aims.|
|Stakeholders must be engaged to get evidence of impact||The information and insights that can be gained from engagement will help a body understand the actual or potential impacts of its policies and practices.|
|There is a duty to obtain evidence it doesn’t have||It is not acceptable for a relevant body to say that it cannot meet the duty because it does not have evidence about a relevant issue. If a body does not have sufficient evidence to have due regard it will need to obtain this by collecting new sources of data itself, if it has time and it is proportionate to do this. It may also acquire evidence by engaging with people with certain protected characteristics, or using external sources of information.|
|Records of the decision making process should be kept.||It is good practice for those exercising public functions to keep an accurate record showing that they had actually considered the equality duty and pondered relevant questions. Proper record keeping encourages transparency and will discipline those carrying out the relevant function to undertake the duty conscientiously. If records are not kept, it may make it more difficult for a public authority to persuade a court that it has fulfilled the duty.|
|Public bodies may publish assessments to help foster good relations||In deciding what records to keep and what information to publish, a body subject to the duty should also take into account whether publishing information may help to deliver the aims of the duty. For example, it will need to consider whether publishing information about how decisions are reached may help to dispel myths and help foster good relations as required by the third equality aim.|
“Public Sector Equality Duty means that public bodies must assess the impact of a policy or decision on all the groups likely to affected. This assessment must be evidence-based and documented so it can be shown to be in compliance with the its equality duty. If evidence is not available is must take steps to acquire it. In some cases public bodies may choose to publish their impact assessments or may be persuaded to do so to foster good relations. These legal obligation means that the impact on women must always be considered and cannot be ignored or trumped by the rights of transgender people. Impact assessments must be fair, balanced and comprehensive and we must hold our public bodies to account”.
|EDUCATE women so they know their rights. Share this article and talk to your friends and colleagues so they know that some women-only spaces and services can be protected by law. Do not let it go unchallenged when someone says it is illegal to exclude a transwomen from a woman-only space or service. Give them a copy of the summary guide below.|
|CHALLENGE service providers and public bodies if you object to situations when they allow access to women-only services and spaces based on gender identity rather than biological sex. Make sure they have considered any adverse impact on women and have balanced the needs of everyone affected. Ask them to explain their decision making process and what evidence they have used to base this decision on. Print out the summary guide below and show it to members of staff. Make them take notice. Educate them! Insist they invoke these legal exemptions. Remember also that public bodies have a particular duty to promote equality for all.|
|PROTECT the legal provisions women already have. Make your voice heard in the consultations about gender reform. The UK government has indicated that they do not intend to remove these legal protections so make sure they stick to that. The Scottish government has not committed to this and may push for these exemptions to no longer apply in Scotland. Scottish and non-Scottish women must object to this. The Scottish consultation is currently open and will close on 1st March 2018. Anyone can submit their views; it is not restricted to Scottish residents.|
|REJECT the proposed reforms to the Gender Recognition Act which will allow any man to change his legal sex to female through self-declaration alone. It is likely that acquisition of a gender recognition certificate could be legally interpreted to mean that a biological male could share the protected characteristic of sex with biological women. If unregulated access to the female sex class is legalised this undermines the whole concept of what the protected characteristic of sex means under equality law. How can members of the female sex be monitored and legally protected if biological sex becomes a meaningless concept. This legal uncertainty must never be allowed to happen.|
(click on image to open pdf)
Author: Nicola Williams; Fair Play For Women