Today, we have submitted a formal complaint to the Equality and Human Rights Commission about inaccurate and misleading information given by Police Scotland regarding the use of single-sex exceptions.
Police Scotland has a duty to promote understanding between groups, and the EHRC has a duty to make sure Police Scotland doesn’t breach those obligations. We believe a breach has occurred and action is now required.
30th January 2022
Dear Equality And Human Rights Commission,
This is a formal request to EHRC to investigate whether Police Scotland are in breach of their Public Sector Equality Duty under the Equality Act 2010 to foster good relations between persons who share a relevant protected characteristic and persons who do not.
Section 149 Paragraph 5 says that “Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) tackle prejudice, and (b) promote understanding”
As reported in the Times, Nicola Murray (director of Brodies Trust) was visited by the police because of a policy statement posted on social media. The policy statement confirmed that Brodies Trust would not be referring women to Edinburgh Rape Crisis Centre because Brodies Trust is a “female-only service” and ERCC is not*.
*(Brodies Trust is a female-only service provider and relies on the single-sex exceptions in the Equality Act to offer its services exclusively to people born female. In contrast, ERCC is a trans-inclusive service provider offering its services to two groups of people; those who share the protected characteristic of the female sex and people to who share the protected characteristics of both the male sex and gender reassignment.)
In a comment to the Times, Assistant Chief Constable Gary Ritchie said “Hate crime and discrimination of any kind is deplorable and entirely unacceptable”.
With regards to discrimination, this statement made on behalf of Police Scotland is inaccurate and misleading. The Equality Act 2010 sets out that discrimination can be lawful when that discrimination is a proportionate means of achieving a legitimate aim. The statement made by Police Scotland that “discrimination of any kind is deplorable and entirely unacceptable” conveys the meaning to the public that service providers who lawfully discriminate on the grounds of sex are themselves deplorable, and it suggests that use of the single-sex exceptions is in some way unlawful.
Police misrepresenting the law in this way is a serious matter. The idea that service providers are in any way deplorable and acting unlawfully is likely to foster bad relations between potential service users who are included and those who are excluded, as well as fostering bad relations with the service provider itself. It is also reasonable to expect this police statement would have a ‘chilling effect’ on other service providers who wish to lawfully provide female-only services. Thus, fettering the ability of service providers to choose the most appropriate, and least discriminatory, service to their target service users.
I understand that EHRC will soon be publishing general guidance on the use of single-sex exceptions. However, specific action by EHRC is now required to remedy any PSED breach by Police Scotland and its consequences regarding public understanding. I therefore request that EHRC urgently advises Police Scotland to publicly withdraw its statement that “any kind of discrimination is deplorable and entirely unacceptable” and to make clear that discrimination on the grounds of sex can indeed be lawful and wholly necessary and appropriate in some circumstances.
Director, Fair Play For Women