156.In recommending the fundamental shift in the approach to enforcement set out above, we recognise that the EHRC should retain its strategic role in ensuring that the law is clear and both enforced and enforceable by others. Our evidence suggested two particularly difficult areas where this role needs to be exercised: that of commissioning single-sex services, where the law is clear but frequently misunderstood and unenforced; and the ability of organisations to use Equality Act exceptions that allow service providers to choose if and how to provide single-sex services, where worries about the legal definition of ‘sex’ and its relationship to the protected characteristic of gender reassignment under the Equality Act appear to be acting as a barrier.
157.When reading through the evidence on this issue, it struck us that different people were using the term ‘single-sex’ in different ways. For some, references to single-sex or women-only services meant services that did or would apply the exceptions to exclude trans women. One submission from a member of the public who described herself as “a woman who is increasingly concerned about the erosion of my rights” stated that “[a]s soon as you say that transwomen are women, single sex spaces become mixed sex.”174 Another individual, who described themselves as a “PTSD sufferer whose symptoms are triggered by males” felt that:
When a previously single sex provision becomes single gender it then it also becomes mixed sex, and unsafe for me and the multitudes of other women like me.175
158.Others were equally clear in their view that the inclusion of trans women had no effect on the single-sex status of an organisation.176
159.Most of the rights under the Equality Act are ‘symmetrical’—the ban on sex discrimination applies to men and women, the ban on race discrimination applies to people from all ethnic backgrounds and the ban on sexual orientation discrimination applies to straight people as much as to gay, lesbian or bisexual people. The law has, however, always recognised that discrimination and inequality are not symmetrical and that there are certain circumstances when treatment that may otherwise be discriminatory should be allowed. The provisions that allow for single-sex services are among these.
160.There are four exceptions under the Equality Act 2010 relevant to single sex services, outlined in the box below.
Box 5: Single-sex services under the Equality Act 2010
Exceptions allowing services to be provided only to women (or only to men)
The first two relevant exceptions (Schedule 3, Paragraphs 26 and 27) allow service providers to provide separate services for men and women, or to provide services to only men or only women in certain circumstances. The symmetrical nature of the ban on sex discrimination means without these exceptions it would be illegal, for example, to hold women-only sessions at a leisure centre or a new fathers’ support group at a nursery.177
Exception allowing single sex services to discriminate because of gender re-assignment
The third exception (Schedule 3, paragraph 28) allows providers of separate or single-sex services to provide a different service to, or to exclude, someone who has the protected characteristic of gender reassignment. This includes those who have a Gender Recognition Certificate (GRC), as well as someone who does not have a GRC but otherwise meets the definition under the Equality Act 2010.
Application of this exception must be objectively justified as a means of achieving a legitimate aim. An example given in the explanatory notes to the Act is that of a group counselling service for female victims of sexual assault where the organisers could exclude a woman with the protected characteristic of gender reassignment if they judge that clients would be unlikely to attend the session if she was there.
Schedule 23, paragraph 3 of the Equality Act 2010 also allows a service provider to exclude a person from dormitories or other shared sleeping accommodation, and to refuse services connected to providing this accommodation on grounds of sex or gender reassignment. As with paragraph 28 and other exceptions under the Equality Act, such exclusion must be a proportionate means of achieving a legitimate aim.
161.The Equality and Human Rights Commission has published a series of Codes of Practice explaining the Equality Act. These Codes are statutory guidance, prepared by the EHRC, approved by the Secretary of State and laid before Parliament. While interpretation of the law is ultimately for the courts the Code can be used in evidence in legal proceedings brought under the Act and must be taken into account by the courts and following the Code can help service providers demonstrate that they are acting lawfully.178 The Equality Act Goods and Services Code of Practice advises that:
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.179
162.On this interpretation of the legislation, a service is single-sex whether or not it includes trans women. If providers of such single-sex services have reason not to admit a trans person (including a person who has a Gender Recognition Certificate), they should be using the exception allowing providers of single-sex services to discriminate because of gender re-assignment.
163.The first area of concern we felt was relevant to enforcement was that public authority commissioners appeared to be commissioning gender-neutral services in breach of the public sector equality duty. Janet McDermott, Head of Membership at Women’s Aid, told us that the most significant problem facing their members was “resourcing, funding and the commissioning that is not honouring the public sector equality duty”, but that under the current enforcement system they were not able to challenge these decisions:
In all these years, I have only known of one case where the public sector equality duty was used. [ … ] We do not have the resources to fight these cases.180
164.This did not seem to be a problem with the clarity of the law. More than a decade ago the decision in R (Kaur & Shah) v London Borough of Ealing found that the (then) race equality duty “may only be met by specialist services from a specialist source.”181 The same principle applies to the provision of single-sex services, as is made clear in the EHRC Technical Guidance on the public sector equality duty:
The [Equality] Act recognises that, in certain circumstances, substantive equality will only be achieved if people with different protected characteristics can be treated differently, for example, to reflect their particular needs.182
The Guidance goes on to say that the duties will almost always be relevant when public services are being commissioned, and further dedicated guidance has been produced on how the duties should be used in procurement by public authorities.183
165.We nonetheless heard that public authorities were increasingly commissioning ‘gender-neutral’ services “that will not enable the aims of equality set out in the Equality Act to be full achieved.”184 Agenda, who campaign for “women who face violence, abuse, poverty and multiple disadvantage” were particularly concerned that:
commissioning of services at a local level is currently disadvantaging this group of women, with movements towards “gender-neutral” approaches to commissioning, and commissioning of larger contracts which see smaller, specialist women’s organisations lose out, and put some at risk of closing altogether.185
166.They cited examples from research into mental health services, which found many Clinical Commissioning Groups were taking a gender-neutral approach, reflected in comments like “[A]ll our commissioned services are for men and women equally”.186 They call for the EHRC to produce national guidance “to support services and commissioners to ensure they understand the provisions of the Equality Act, the use and application of the Public Sector Equality Duty and the importance of gender-specific commissioning for women facing multiple disadvantage.”187
167.While the apparent failure of significant numbers of public sector commissioners to properly apply the public sector equality duty to their decision making is a problem of understanding and not of the law itself, it is a clear example of what is going wrong because of the current system of equality law enforcement. This cannot be left to affected organisations to fix. As Women’s Aid made clear, they do not have the resources to do so.
168.We recommend that the Government Equalities Office issue a clear statement of the law on single-sex services to all Departments, including the requirement under the public sector equality duty for commissioners of services to actively consider commissioning specialist and single-sex services to meet particular needs.
169.The second particularly difficult issue that emerged was the ability of organisations to use the Equality Act exceptions that allow service providers to choose if and how to provide single-sex services. While not strictly speaking an enforceable ‘right’ these exceptions are a part of the way in which the Equality Act 2010 seeks to balance the rights of all protected characteristics in a single Act of Parliament and it is in everyone’s interest that these are clearly understood.
170.This is also an area where the current individual approach to enforcement is clearly problematic: normally, the most effective way to bring about legal clarity would be through significant case law. This does not yet exist in this area, and the only way in which it can be created is for either a potentially vulnerable individual or the EHRC to bring legal action against an organisation that may well be providing essential services to equally vulnerable people. The EHRC was clear in its evidence that this was not its preferred route either:
We do not want people to have to bring cases; we want people to understand what their obligations and rights are and for people to comply with the law. We have a role in helping them to do that.188
171.Many of those who wrote to us felt that the Government planned to make changes to the Gender Recognition Act, to remove certain barriers to the granting of a Gender Recognition Certificate (GRC), which they felt could undermine women’s rights and specifically threaten the use of single sex-exceptions by service-providers. For example, one member of the public argued that:
We desperately need legal clarity on the terms ‘transgender’ ‘transsexual’, and ‘gender reassignment’—I think [the] way they are currently being used, and the way the [Equality Act] interacts with the GRA 2004, is being abused, misused, misapplied and misrepresented189
Another member of the public argued that “The combined effect of the [Gender Recognition Act] and the [Equality Act] is to conflate sex and gender irretrievably, and what remains is a rat’s nest of contradictions, where sex-based rights cannot be properly invoked.”190
172.The Government has yet to report on its consultation into its review of the Gender Recognition Act, so the Committee asked Karon Monaghan QC, an expert equality law barrister, if the Gender Recognition Act as it currently stands, or any changes to it, would impact on the Equality Act and undermine women’s rights in the way set out in submissions to the committee. She was clear that:
If there is a change so that self-identification becomes the route to a GRC [ … ] you will not need to change the model of the Equality Act. A trans woman with a GRC will still enjoy protection against discrimination because she is a trans woman, and she will enjoy protection as a woman because she has a GRC, but she will still be subject to the exemptions in relation to single-sex services. Whether or not she has a GRC [ … ] she can still lawfully be excluded from single-sex services such as rape crisis centres and so on, subject to thresholds being reached. It cannot be an arbitrary refusal: “We’re calling this a single-sex space. You can’t come in.” It cannot be that. It has to reach a certain threshold of proportionality and so on.191
173.She did, however, report concerns that in practice many organisations may be fearful of using the exceptions due to a “chilling effect” from what she believed was a lack of clarity in the law. This meant that many smaller organisations “do not feel confident about where the boundaries are.”192 FiLiA, a charity that describes itself as ‘a women-led volunteer organisation’ reflected similar concerns, telling us that women’s organisations were worried that “invoking the single sex exemptions of the [Equality Act] will leave them vulnerable to costly and difficult legal proceedings, or cost them their funding.”193 A women-only holiday centre was worried about how they could “reliably enforce our application of the exemptions” when “it would not be proportionate for us to ask to see birth certificates, and anyway, those transwomen with a GRC would have one that stated they were born female”. In this context, they told us they could “only rely on crossing our fingers that transwomen respect our intention of providing a single-sex service.”194
174.In order to explore this question in more detail we held an oral evidence session with witnesses from Women’s Aid, Nia, an organisation providing support to survivors in East London and the Cornwall Refuge Trust.195
175.Diana James spoke on behalf of the Cornwall Refuge Trust and explained that:
Our experience is that we have never actually used [the exceptions]. We have never considered needing to use the Equality Act because we have been inclusive within the women’s refuge.
[ … ]
We have had trans women through the women’s refuge and we have had transmen through the men’s refuge, and lesbian, gay and bisexual people through our refuge all the time.196
176.In contrast, Karen Ingala Smith speaking for Nia argued that a women’s refuge that admitted trans women was a mixed-sex refuge, stating that “[i]f you are saying you have inclusive refuges, then you have refuges where men and women are housed together.”197 On this basis Nia had developed a specific “prioritising women policy”. Ms Ingala Smith explained:
We decided to do that because we decided as an organisation we wanted to protect single-sex women-only services as much as possible. Because of the way commissioning and the Equality Act work at the moment, we are able to provide single-sex services to our refuges, our women’s service, our rape crisis and domestic and sexual violence group work situations. In our other services, we are contracted to provide services, in most cases to women as well as men. Where that is the case, we provide services to everybody.198
177.She explained that they made use of both the exception allowing for single-sex services and the exception allowing such services to exclude individuals on the grounds of gender reassignment. It was clear from her evidence that she believed that excluding people with the protected characteristic of gender reassignment was the only way in which Nia’s service could be considered women-only.199
178.Not unsurprisingly given that they are an umbrella organisation for a diverse range of services, Women’s Aid had a more mixed picture of how those services were deciding when and if to use these exceptions. Janet McDermott explained that:
A lot of members would not have a specific policy related to the Equality Act, but the existence of the Equality Act gives a confidence and presumption to services that they are doing the right thing in delivering women-only provision and that the law is behind them.200
179.The panel discussed how the services they provided or worked with handled problems that may arise. Diana James told us that any problems in the refuge in which she worked were of the type that you would expect in the service they provided, and were unconnected to their inclusive approach:
[i]f you get half a dozen traumatised women in a refuge, not everybody is going to get on with each other. There is going to be, “My abuse was worse than yours. What are you doing here?” If you get a lesbian in a refuge, “Women do not hit as hard as men do. Your abuse was not as tough as mine”.201
180.Such problems were dealt with “through policies, sitting down and speaking to people about issues they are facing and you work it through.”202 The Cornwall Refuge Trust also had robust safeguarding processes in place to ensure that no-one who may be a risk could access their services, regardless of their trans status:
We do the prior stuff, everything, all the procedures before someone gets in, because you could have a woman come along who is a lesbian and we could have her ex-partner in the refuge. Therefore, we have to be really careful about everybody who gets into a refuge.203
181.Janet McDermott similarly explained that their members used risk and needs assessments “to pick up any malicious, vexatious or disruptive intention by anyone trying to access the service.” This was not just about an initial assessment, but also “managing relationships in communal living situations and managing group work.” This was particularly important for refuge services because of the nature of domestic abuse:
Domestic abuse is about an abuse of power and control, so all our practice has to be about challenging any hint of perpetuating coercive behaviours in residents in refuge and in our services. The services can be unsafe places for all sorts of reasons [ … ] because of racism, because of homophobia, because of different levels of access to privilege, status, power and so on. We have to manage those power dynamics all the time within our service-user population and in relation to looking at a new referral and how safe our service is going to be with its current service users for this new potential referral.204
182.Karen Ingala Smith was less confident that the concerns Nia had identified could be managed through risk assessment, explaining that:
When you first take a referral, it is over the telephone. Sometimes a woman is in an immediate place of danger and she has to get to the refuge quickly. Anybody who knows about refuges knows that sometimes you get women turning up, if they are lucky, with a bin bag full of stuff and the bin bag full of stuff is sometimes just the children’s toys [ … ] You do not get time to do a massively detailed risk assessment usually before the woman arrives.205
She felt that it would be too difficult for a refuge in such circumstances to assess the likely risks that she felt would result from transgender people accessing Nia’s services.206
183.We asked our panel of witnesses if they had ever had any complaints from service users about their approach to providing single-sex services, or if they had ever had to turn someone away because they were trans. Janet McDermott reported one incident shared informally with her by a member of Women’s Aid where there appeared to have been concerns about the presence of a trans woman in refuge accommodation, but she was unclear of the precise nature of the concern and it had not come as a complaint.207 She was not aware of anyone having been turned away because they were trans.208 Diana James told us that they had turned people away for other reasons, but they did not know if they had been trans and no members of staff could remember ever having had to turn someone away because they were.209 Nia had turned trans people away from the refuge “for reasons other than because they were trans”, but Karen Ingala Smith was also clear that if they had needed to rely on the exceptions in the Equality Act to turn people away they would have done so.210
184.It became clear that guidance on what organisations can and can’t do was lacking. Women’s Aid were working to produce guidance for their members, but this was taking time because they were seeking to ensure consistency with others in the sector.211 Janet McDermott also argued in favour of national guidance from the Government—particularly to ensure that those commissioning support services for victims and survivors of domestic and sexual abuse were aware of the need for women-only services.212
185.Karen Ingala Smith felt that the current guidance on single-sex services made the law more, not less, difficult to understand,213 particularly where it “points towards a case-by-case analysis” of whether the exception allowing the exclusion of someone on the basis of gender reassignment can be used. She was particularly concerned that ‘proportionality’ could be interpreted in a number of different ways.214
186.Diana James agreed that greater legal clarity was needed “so everybody knows where they are coming from legally.” She also called for guidance to be written clearly and with the involvement of all groups:
You have to include people who are trans women who have been through or work in the refuge system, but you also need to include those people who have feelings that are diametrically opposed to that. It is going to be a really difficult way of doing it, but if we are going to come to some organisational and legal arrangement where this is going to work, there is not really a lot of choice. We have to come to an agreement.215
187.Karon Monaghan QC also felt that there was not enough clarity:
it is not enough to have a paragraph in a code of practice saying, “You can exclude people on the grounds of trans status if you need to.” It needs to say, “These are the circumstances and these are the factors you need to consider,” and so on.216
188.She suggested that this clarity could be brought either through “carving out” exceptions allowing services such as rape crisis centres to apply a blanket policy or, if this was not possible, more “nuanced guidance”. She argued that this was not about exclusion, but “about where the lines are drawn and ensuring that there are adequate services across the board.”217
189.We asked the Equality and Human Rights Commission, whose Equality Act Code of Practice on Goods and Services currently contains the most significant guidance on the operation of the exceptions available to providers of single-sex services, if they felt that current law and guidance was sufficient. Melanie Field told us that she was confident that the Equality Act provisions “are fit for purpose” as “[t]hey allow inclusion and also allow exclusion when it is objectively justified and there is a good reason for it.” She did, however believe that people would welcome more information “about how that plays out in practice”, which would also help ensure that “misconceptions, misunderstandings and genuine fears and concerns” do not promote a climate of intolerance and damage good relations between groups.218
190.We do not believe that non-statutory guidance will be sufficient to bring the clarity needed in what is clearly a contentious area. We recommend that, in the absence of case law the EHRC develop, and the Secretary of State lay before Parliament, a dedicated Code of Practice, with case studies drawn from organisations providing services to survivors of domestic and sexual abuse. This Code must set out clearly, with worked examples and guidance, (a) how the Act allows separate services for men and women, or provision of services to only men or only women in certain circumstances, and (b) how and under what circumstances it allows those providing such services to choose how and if to provide them to a person who has the protected characteristic of gender reassignment.
177 Explanatory Notes to the Equality Act 2010, paragraph 738
178 Services, Public functions and Associations: Statutory Code of Practice, Equality and Human Rights Commission January 2011, para 1.5
179 Services, Public functions and Associations: Statutory Code of Practice, Equality and Human Rights Commission January 2011, para 13.57
182 Equality and Human Right Commission, Equality Act 2010 Technical Guidance on the Public Sector Equality Duty: England (August 2014), para 4.2
183 Equality and Human Rights Commission, Buying better outcomes (undated)
Published: 30 July 2019