Guest post by Maya Forstater.
Last week the Women and Equalities Select Committee said what so many women concerned about gender self-ID have been saying: organisations need clear guidance on what the law says on single sex services, and the Equality and Human Rights Commission (EHRC) should provide it.
In the findings from its Inquiry on Enforcing the Equality Act the Committee says there is an issue of ‘balancing rights’ in relation to single sex services. It called for the EHRC to develop a dedicated Code of Practice to set out clearly what the Equality Act 2010 says about separate and single sex services, and what this means for transgender people. Their report is now awaiting a government response.
EHRC Codes of Practice are a big deal. They have to be approved by Parliament and it aims to provide authoritative, comprehensive and technical statutory guidance to the detail of law.
The EHRC have previously promoted the idea of ‘trans inclusive single sex spaces’, but this is a logical impossibility, and its guidance to date is inconsistent with the Equality Act.
Service providers, employers, charity trustees, front-line staff, law enforcement, regulators and service users all need to understand what ‘single sex’ means, in order to safeguard the dignity, privacy, safety and equity of all. A new Code of Practice, consistent with the Equality Act, would provide much-needed clarity.
This briefing argues that the new Code of Practice should:
4. Reject the criteria of ‘passing’ (being “visually and for all practical purposes indistinguishable from a non-transsexual person”) which was introduced in previous guidance. It is unworkable, inhumane and potentially humiliating for all.
1. Getting the scope right: This goes beyond refuges and rape crisis centres
The select committee focused particularly on services for survivors of domestic and sexual abuse, and asked the EHRC to provide worked examples about these situations. These services are particularly important. However the provisions in the Equality Act are much wider than this.
The parts of the Act that covers women’s refuges also cover other situations such as homeless hostels and changing rooms, and many organisations are covered by more than one part of the Act. People going about their daily lives need to understand what “single-sex” or “women only” means in many contexts, from the everyday (toilets, changing rooms, schools, Girl Guide tents), to the medical (hospital wards, smear tests, maternity services), to situations such as dormitories, sports competitions, prisons, women’s charities and all-women political shortlists.
|There are eight specific provisions allowing single sex facilities in the Equality Act
In addition the public sector duty (Section 149) makes it a legal obligation for local authorities, NHS Trusts and other public bodies to assess how their policies impact on people with protected characteristics, including women and girls.
The single sex exemptions in the Equality act are generally permissive (organisations in general are allowed but not required to provide single or separate sex services). Whenever an organisation provides a facility which excludes one or other sex (for example by putting a male or female icon on the door) they are in effect relying on one or more of the exemptions. No special procedure is required to activate them. While most parts of public life are open to both men and women equally, where a facility necessitates bodily contact, undressing or shared sleeping space, not providing this in a way that allows women and girls to be confident that they have privacy from men (and vice versa) is likely to make facilities unwelcoming to many parts of the community, and leave organisations at risk of indirect discrimination. Public sector organisations have a legal obligation to assess the impacts of its policies in relation to all protected characteristics.
The scope of the single-sex provisions in the Equality Act covers closely-supervised situations such as schools, hospitals and prisons where the service provider is in a position to know in some detail about a person’s history, but also more lightly supervised situations where the person on the front desk has little to go on but superficial appearance, as well as completely unsupervised situations such as public toilets, or a woman working from home providing Brazilian waxing.
The statutory guidance needs to be workable in all these situations.
The statutory guidance on the Equality Act 2010 should also be compatible with compliance with the Charities Act 2011 and other sector specific regulations which in some cases require organisations to provide separate sex facilities. Relevant regulations cover schools, prisons and larger workplaces, for example. The trustees of charitable organisations have a legal obligation to pursue the charity’s objects, which can be limited to serving one sex (there are around 20,000 women’s charities in the UK).
2. Getting to the heart of the matter: Does ‘single sex’ mean ‘single sex’ or ‘single gender?
The Women and Equality Subcommittee notes that “When reading through the evidence on this issue, it struck us that different people were using the term ‘single-sex’ in different ways.”
This is the fundamental issue that the new Code of Practice must tackle.
Someone who believes that ‘man’ and ‘woman’ are gender identities, independent of the material reality of people’s physical body, may think that “single sex” means a facility which caters for people who share a gender identity. Someone who believes that man and woman are sexes will think that “single sex” means single sex.
While service providers must be able to accommodate people with both sets of beliefs about the nature and importance of sex and gender identity, they need a clear standard for what ‘single sex’ facilities means in practice, so that front-line staff, women, and transwomen understand what is appropriate and what their rights and responsibilities are, and no one is put in a position of uncertainty, humiliation or conflict.
The Equality Act is clear that ‘single sex services’, and the terms ‘man’ and ‘woman’ relate to the protected characteristic of sex, and that this has an objective defined meaning. A woman is a ‘female of any age’. Thus, there are two sexes. Sex is observed at birth and is stated on your birth certificate. This remains biologically true throughout life. It remains legally true for all but a tiny minority of people (1 in around 10,000 adults in the UK have legally changed their sex via a Gender Recognition Certificate).
The protected characteristic ‘gender reassignment’ applies to a much wider group than people that have legally changed their sex. It covers any individual who is ‘proposing to undergo, is undergoing or has undergone a process or part of a process to reassign their sex’. Stonewall estimates that up to 1% of people may have a transgender identity. Thus there may be 100 or even 1000 times as many trans people without a GRC than those who have legally changed sex.
A straightforward interpretation of the single-sex exemptions in the Equality Act is that males are excluded from women’s services on the basis that they do not share the protected characteristic of being female (and vice versa). Any other protected characteristics they have is not relevant. No separate case is needed for excluding disabled males, older males, gay males, Catholic males, Jewish males, atheist males, or any other males from a women’s single sex service. It makes sense therefore that males with the protected characteristic of gender reassignment are also excluded in the same way as all other males. People who have legally changed sex can also be excluded, since it is not someone’s legal sex, but their actual physical sex which has the potential to make others uncomfortable.
The Equality Act states that the single sex exemptions can be applied where they are “a proportionate means of achieving a legitimate aim.” If it is a legitimate aim to provide women with a single-sex environment or programme in a particular situation, then excluding males must be a proportionate means of achieving this, since there is no other way of achieving a single sex environment. Excluding any individual male is proportionate means, since including them would mean that the legitimate aim of providing a single sex environment could not be achieved.
The Equality Act does allow some specific exceptions to the rule that single sex means single sex. For example single sex schools are allowed “to admit a small number of pupils from the opposite sex on an exceptional basis or in relation to particular courses or classes only”. In this case the school is still considered to be “single sex” even though the pupils are not. But female students attending a boys school are not considered to be boys (or required to be treated in exactly the same way as boys). They are simply allowable exceptions to the rule.
The Equality Act does not specify any similar exceptions whereby providers of single sex services (or single sex charities) are allowed to admit people of the opposite sex because they have the protected characteristic ‘gender reassignment’. It does allow charities to be set up explicitly to serve groups of people based on more than one protected characteristic. For example a charity could have objects which say that its purpose is to serve both women and transwomen (males with the protected characteristic of gender reassignment). But it does not follow from this that the trustees of a charity whose purpose is to serve women are free to ignore these objects and divert resources to serve a group of vulnerable males.
3. Getting back to the Equality Act: getting rid of misinterpretations.
The EHRC in its guidance documents across its website and in its statutory code of practice has introduced confusion by stating that service providers offering single sex provisions should allow people to access them “according to the gender role in which they present” apart from in “limited circumstances, where treating transsexual people differently may be lawful.
As the Women and Equalities Select Committee notes “On this interpretation of the legislation, a service is single-sex whether or not it includes trans women.” However this interpretation of the legislation does not, in fact, appear to be in line with the Equality Act. The new Code of Practice should clarify the correct interpretation.
The Equality and Human Rights Commission has previously published guidance which has given support for the idea that ‘sex’ and self identified gender should be treated as interchangeable in relation to single sex services. Many organisations are therefore interpreting ‘single sex’ to mean ‘single gender identity’.
In doing this they potentially disadvantage and indirectly discriminate against women and girls who need and expect single sex services for privacy, dignity and autonomy. They undermine the principle of consent where body contact or exposure is involved. They may also indirectly discriminate against people on the basis of the protected characteristic of religion or belief, since the belief that people with penises can be female is not one that is universally shared.
The new Code of Practice should be developed in line with the Equality Act itself, even if this requires organisations to review their current practices.
|Organisations are already interpreting ‘single sex’ as ‘single gender identity’
Women’s refuges and rape crisis centres: According to a Stonewall report domestic and sexual violence support services are allowing males who self identify as women to access women-only communal services. Scottish Women’s Aid and Rape Crisis Scotland both take the formal position that access to their “women only” services should not be limited those who are female.
Hospitals: ‘single sex wards’ are being operated as ‘single gender’ across the country. For example South London and Maudsley Hospital says “Trans people have equal rights to access single sex wards as any other man or woman and therefore should be admitted to a ward in accordance with their preferred gender.” West Hertfordshire Hospital says “Trans people should be accommodated according to their presentation; the way they dress, and the name and pronouns that they currently use. This may not always accord with the physical sex appearance of the chest or genitalia.” .
Toilets and changing rooms: Swim England say trans people should be able to use the facilities which they feel “to be most appropriate”, and that male trans swimmers should also be able to access women only swimming sessions, even if their anatomy “may look to others” like a male body. East Sussex Council gives guidance that “pupils and students have the right to access the toilet that corresponds to their gender identity” and no child should be required to use a single occupancy toilet rather than the toilet block of the opposite sex”. The Football Association warns against assuming that just because someone looks like a man that they shouldn’t be in the women’s public toilets.
Occupational Requirements: Intimate searches The Metropolitan Police says: In general a prisoner should be searched by an officer ‘of the same gender’ and this is based on how the officer looks: “we must treat people according to the gender they present”. Bedfordshire, Cambridgeshire and Hertfordshire Police say “It would be lawful to discriminate against a female to male (FTM) transgender person if it would also be lawful to discriminate against a man (e.g. restricting a job involving intimate body searching of women to women applicants).”
Sports: The Football Association states that under the age of 19 any boy who identifies as female can play on a girls team (as well as share changing and showering facilities). Above the age of 19 males who can show “blood testosterone within natal female range for an appropriate length of time so as to minimise any potential advantage” can compete on women’s teams. Those whose hormones are outside of this range will be considered on a case-by-case basis. UK Athletics also states that men who have reduced their testosterone level to ‘within the female range’ can compete in women’s events. East Sussex Council says “Trans* and gender questioning pupils and students should be permitted to participate in competitions in a manner consistent with their gender identity.”
Communal accommodation: The Youth Hostel Association used to offer single sex dorms where travellers shared bunks, toilets and shower rooms with strangers of the same sex. These have been changed to “single gender” on the basis of self identification.
The prison service in England and Wales previously had a policy that if a transgender prisoner has legally changed their sex, or has commenced the process of applying for a GRC (even without any hormone or medical changes) they must be housed in the part of the prison estate consistent with their acquired gender and should be treated “in the same way as any other person of their acquired gender” (this has now been updated, so that only those with a GRC are required to be housed with members of the opposite sex. More safeguards have been included for risk assessment). In Scotland, the policy makes no specific reference to GRCs, but states that where the person in custody is permanently living in their new social gender instead of the gender they were assigned at birth, then establishment allocation should usually be the new gender in which they are living”.
Political parties: The Labour Party says that “All Women Shortlists are open to “all women” including self-identifying trans women. Similarly, women’s officers and minimum quotas for women in the Labour Party are open to all women, including self-identifying trans women.”
Charities. The Guide Association is a charity whose objectives set out in a Royal Charter start with promoting “education of girls and young women”. They have recently changed their policies to include boys and men who self-identify as girls and women. The Women’s Institute, an educational charity whose constitution states membership is only open to women, also now says “anyone living as a woman is welcome to join the WI and take part in all WI activities. They should be treated in exactly the same way as all women who are part of your WI.”
In a statement released on July 30 2018 last year the EHRC clarified that even though ‘sex’ and ‘gender’ are often used interchangeably, the protected characteristic remains sex. Thus the EHRC has made clear that a man who presents in a feminine ‘gender role’ is a man. This suggests that their previous (and still current) guidance that a man who ‘acquires’ a different gender, (for example by changing their name, asking to be referred to as ‘she’ or changing appearance) should be allowed into single sex spaces for women is not in line with the Equality Act.
The EHRC has already begun to step back from some of their previous advice on this. On October 5th 2018 following correspondence from Fair Play For Women it updated its guidance document “What Equality Law Means for your Business” removing the statement “Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services”. It also removed the statement that a pub should not refuse a transgender person “access to the toilets appropriate to the sex in which they present” (this must be cold comfort to the Yorkshire publican who was previously ordered by a county court to pay out £1,500 in damages for barring a transgender male access to the women’s toilets).
In previous statutory and non-statutory guidance the EHRC introduced the idea of individual case-by case assessments for excluding people from single sex provisions of the opposite sex. However this does not make sense: if single sex services are interpreted as single sex services, then it is quite clear that people can can be included or excluded on a simple categorical basis.
Significantly, where previous EHRC guidance called for individual case by case assessment in general, the July statement suggests that this only applies to the small minority of transgender people who have legally changed sex. It also dialled back on the expectation of what this ‘case-by-case assessment’ might entail, saying only that it is ‘often’ needed, and leaving out the word “individual”. This suggests that the case circumstances in question could be the general policy of a service, or the objects of a charity, rather than the personal characteristics of an individual.
In other words a service or charity should be able to say straightforwardly whether it is open to males, females or both sexes.
4. Getting away from the idea of “passing”
Confusion about what the Equality Act means by the words ‘man’ and ‘woman’, and by “single sex”, has lead to the fruitless search for a fair, workable and humane dividing line; the point at which someone male should be allowed into a service for women.
Previous EHRC guidance introduced the criterion of “passing”, which does not come from the Equality Act itself. This appears to draw from the precedent of the West Yorkshire police case, which involved employment of a police officer whose duties must include searching either male or female people. The House of Lords judgement on the case (from 2014) decided that the “male to female” transsexual could not possibly search male suspects, but should have been employed on the basis of being able to search female suspects, since no woman “searched by [someone visually and for all practical purposes indistinguishable from a non-transsexual person] could reasonably object”. The EHRC also adopted this language about someone being “visually and for all practical purposes indistinguishable from non-transsexual person” in its general guidance.
No one asked women whether they might, in fact, object to being told they couldn’t be guaranteed they were being searched by a female person. Could a reasonable woman object if they found out later that the ‘woman’ who searched them was male? What about if they suspected at the time and were told they couldn’t ask? What if the person has a penis? What if it was a strip search or a smear test? What about an examination after sexual assault? What about an older person receiving intimate personal care? Could women reasonably object to sharing showers, dormitories, hospital wards, women’s refuges with strangers, colleagues or classmates who might or might not be male, who might or might not have male genitals?
No one asked, and much has been extrapolated from the limited case law from this single case.
At the same time telling trans people that their rights depend on their appearance is also inhumane. How can someone book a service online if they may be told at the desk that they don’t look or sound female enough? Should a person wanting a place in a female halls of residence or a female sleeper carriage be turned away on the day if they don’t look feminine enough? Who is to judge? Is someone ‘less trans’ because they don’t pass? Isn’t this imposing sexist stereotypes about what it means to be a woman? Doesn’t everyone have a right to be included in public life regardless of what clothes they wear, whether they wear makeup or not or how they wear their hair? Why should it be anyone else’s business whether someone has had surgery or not? Why shouldn’t someone be out and proud about being trans?
The idea that the right to access to intimate single-sex spaces, or programmes intended to promote the education or health of women and girls should be based on criteria such as the quality of someone’s personal grooming and the femininity of their appearance is demeaning, unworkable and risks humiliating all concerned.
Many organisations, frightened or unwilling to apply the straightforward criterion of sex, shift to pure self-identification, which in practice means that no male could be turned away from women’s spaces or services.
5. Reconcile ‘trans inclusion’ with single sex spaces.
The Equality Act 2010 makes clear that people should not be discriminated against because they have (or are perceived to have) the protected characteristic of ‘gender reassignment’. That is, transgender people should have equal rights to access services, and in employment and to take part in public life.
There has been much confusion about whether this means transgender people have the right to access the limited parts of facilities where employers and service providers are allowed to restrict provision by sex. This has led to a divisive debate between the two protected groups of women and transwomen, and to unworkable policies being developed by organisations.
The Equality Act provides a simple, clear and humane basis for single sex spaces. It allows organisations to provide single and separate sex services where where this is a proportionate means to a legitimate aim. Single sex services exclude, as a category, people of the opposite sex. This does not require organisations to judge men or women on what they look like.
Many politicians and influential organisations including the Equality and Human Rights Commission have argued that “single sex spaces should be trans inclusive”. This sounds nice, but is impossible (apart from, of course, in the sense that people should not be excluded from or harassed in single sex spaces of their own sex, because of non conforming gender expression).
What is true is that services, employment and public life should be trans inclusive. This does not require that single-sex areas and services be removed and replaced by universally mixed/ unisex services, or by self identified gender.
People with gender dysphoria may feel uncomfortable using single sex facilities for their own sex (although sometimes it can be necessary for their own health needs, such as smear tests and maternity services for women who identify as transmen). In many situations people who feel this way can be accommodated with unisex or single occupancy alternatives, accessible to anyone who prefers not to use single sex facilities with people of the same sex. This allows those who do not want to reveal their sex or transgender status to go about their everyday life with privacy and dignity. It also accommodates those who identify as non-binary or any other variation.
Transgender people may value ‘gender-affirming services’ (that is services where they are treated as if they were members of the opposite sex), friendship groups and formal associations and service providers can choose to provide such services amongst consenting adults. But it is not a proportionate means to a legitimate aim under the Equality Act to compel people using or providing single sex services to pretend that they do not perceive sex, or to conscript them into sharing spaces where where they are undressing or vulnerable with people of the opposite sex in order to provide them with a gender-validating experience.
Single sex services are already justified under the Equality Act, to achieve the legitimate aim of allowing people of either sex to access services equitably, and with reasonable privacy and dignity, and to address the disadvantages and obstacles faced by women and girls. There is no quid pro quo which says that in order to access these services women and girls must submit to the demand that they provide ‘gender affirmation’ to dysphoric males (nor, indeed that they become unwilling or unwitting participants in someone else’s sexual paraphilia).
The EHRC is responsible for promoting equality in relation to all protected characteristics. It should recognise that ‘trans inclusion’ in single sex spaces is not necessarily ‘more inclusive’ overall.
For example, on Hampstead Heath there were three swimming ponds: men’s, women’s and mixed. This accommodated everyone. Transgender-identifying males who did not want to use the men’s pond were welcome at the mixed pond, while the women’s pond provided a particularly valuable service for women who for whatever reason (including religion and history of sexual assault) valued the female-only space. This has now been changed so that men who self-identify as women can access the women’s pond (and vice versa). The result has not been to increase inclusion, since people of both sexes and any gender were already catered for by the mixed pond. It has in fact decreased inclusion since none of the three ponds is now accessible to women who do not want to expose their bodies in a mixed sex environment.
Similarly in sports. Males who identify as women should not be excluded from the men’s (or ‘open’) category of sports. Nor should they be harassed or humiliated when playing with other men. Individual changing facilities would enable privacy for those with gender dysphoria. This is trans inclusion which is consistent with single sex sports. However including men who identify as women in women’s sports has the effect of reducing inclusion, since women and girls no longer have the fair and equal playing field of being able to compete safely and fairly with other women.
6. Viewing sex as real, immutable and important is not ‘transphobia’.
The public and policy discussions on ‘trans inclusion’ in single sex services has to date been strongly led by advocacy organisations which argue that gender identity should overwrite sex, and that anyone who does not accept this is ‘transphobic’.
Trans advocacy groups have been closely linked to the development of official guidance. The EHRC is a “Stonewall Equality Champion” and provided funding to establish the organisation Gendered Intelligence. The EHRC’s Trans reading list is dominated by groups and authors holding this viewpoint. It worked in close cooperation with Mermaids and Gendered Intelligence in announcing the development of new guidance for schools. Gendered Intelligence also wrote the Government Equalities Office Guidance to business on Providing Services to Transgender Customers and influenced government policy placing males into female prisons.
Stonewall tells schools that it is a “legal requirement under the Equality Act” to allow a trans young person “to use the toilets and changing rooms of their self-identified gender rather than of their assigned sex” (it isn’t). East Lothian Council said “Stonewall Scotland recommends that the term ‘gender’ is used rather than ‘sex’ as it is more inclusive”.
By being told that forcing women and girls to accept male people in single sex spaces is both the spirit and the letter of the law, organisations operating these policies have been encouraged to believe that anyone who objects must be an ignorant bigot in need of re-education. The LGBT Domestic Abuse Project, Scottish Women’s Aid, the Tayside Violence Against Women Training Consortium and the Scottish Transgender Alliance developed a guide Stronger Together which tells organisations that women who are uncomfortable about having biologically male people in women’s spaces should be educated “much in the same way that we would if we received comments regarding other service user’s ethnicity, religious affiliation or sexual orientation”. East Sussex Council states that if a girl feels uncomfortable with a male teenager in the showers it should be explained to her that “although the individual in question may have the body of a boy, they are in every other respect a girl and as such have the right under the Equality Act to change with the girls and to be treated fairly as such”.
Thus the Equality Act has been used to encourage organisations to bully women and girls into ignoring their own rights to bodily privacy and to consent. Presenting the idea that recognising women as a sex is “transphobic” has allowed women’s voices to be silenced in the public debate, with those speaking out facing violence, harassment, economic intimidation and removal from social media.
This era of “no debate” has not led to a clear, consistent and humane interpretation of the Equality Act which supports the human rights of all. Internal correspondence revealed through a Freedom of Information request shows that as recently as July 2018 the EHRC had not reached its own internal agreement about whether transwomen with a GRC are entitled to access or may be excluded from women’s single sex services, and had no clear process for developing it.
The fact that even the main institution charged with enforcing the Equality Act has not developed a clear legal understanding and has allowed confusion to proliferate for years shows why it is important to be able to talk about difference between sex and ‘gender reassignment’, and why it must be made absolutely clear that recognising another person’s sex, and not wanting to share single sex spaces with members of he opposite sex is not ‘transphobic’.
The Women and Equalities Select Committee says “We want to encourage a reasonable and reasoned debate. Some of the evidence will be offensive to some people but that it is important that all sides of the issue are heard”. Women and women’s organisations that have stood up for a clear definition of woman should be consulted and included in the process of developing the Code of Practice, alongside parliamentarians, organisations such as ACAS, the trades unions, LGBT and trans rights groups, women’s organisations, human rights groups and regulators such as the Charity Commission, the Care Quality Commission, who all need to remember, and respect, that sex is a protected characteristic in the Equality Act.