In April 2022, the Equality and Human Rights Commission issued non-statutory guidance on the provision of separate and single-sex services.
While initially seen as a welcome step on a difficult issue, it has since been the subject of criticism from prominent trans rights campaigners, including Mermaids, a charity supporting transgender, non-binary and gender-diverse children and young people, and Stonewall. Moreover, Robin White, an employment barrister who has written extensively on transgender law, has warned that the guidance could lead employers into non-compliance with the Equality Act 2010.
So, what are the concerns with the guidance?
It is non-statutory.
A statutory code of practice for service providers already exists and this non-statutory guidance, curiously, fails to make any reference to that pre-existing and legally more powerful guidance.
This failure is misleading and could create confusion for service providers trying to ascertain their legal obligations.
If a service provider inadvertently breaches the statutory code, relying on this non-binding guidance will provide no defence against allegations of discrimination.
It makes statements about sex and gender reassignment that are not consistent with the Equality Act 2010, or with caselaw which has considered these issues.
The Equality Act 2010 makes no reference to biological sex or birth certificates as being determinative of an individual’s legal sex for the purposes of protection under the act, yet these appear to be relied upon within the guidance.
This aspect of the guidance also seems inconsistent with established caselaw, which suggests that an individual’s affirmed sex is the one which is relevant for the purposes of the act.
The wording of the act itself, which refers to ‘other attributes of sex’, strongly suggests that the intention of the drafter was not simply to rely on an individual’s biological sex when determining a person’s gender. This is not reflected in the guidance.
Examples within the guidance can suggest a principle of exclusion for the trans community and there is a perception that the examples legitimise prejudiced positions.
One example within the guidance provides a suggestion of how to address single-sex spaces, where some service users state that they would not use the service if the single-sex toilets were open to those of the opposite biological sex.
The guidance suggests that service providers could offer all service users the option of either using the toilet for their biological sex or a gender-neutral toilet if this makes them more comfortable.
This starts from a position of exclusion, with members of the trans community not being given the option to use the toilets for the gender that they identify as. Instead, it seems to recommend that a trans woman, who visually, and for all practical purposes, is indistinguishable from a non-trans woman, should use the men’s toilets. This would likely lead to them being challenged in male facilities and therefore result in them feeling they have no choice but to use the gender-neutral toilets, to preserve their safety and dignity.
This example seems directly contradictory to the statutory code, which provides that a transsexual person who is indistinguishable from a non-transsexual person should generally be treated according to their acquired or affirmed gender, rather than their biological sex, unless there are strong reasons to the contrary.
While the non-statutory guidance makes no mention of the strong reasons requirement, it could be perceived as implying that other service users’ discomfort in sharing facilities with members of the trans community constitutes a valid strong reason. LGBT campaigners have pointed out that this could be used to suggest that there is some inherent danger in sharing a space with a trans person and legitimises prejudiced positions on this basis.
There is no mention of the requirement in the statutory code to treat circumstances on a case by case basis.
This omission, coupled with the examples set out within the guidance, could lead to well-intentioned service providers erroneously adopting blanket approaches to situations regarding single-sex services or spaces which are wrong in law.
For example, there is a significant difference between a young person starting out on their gender identity journey and a trans person who transitioned several years earlier.
The guidance also, critically, fails to mention the requirement on the service provider to show that there was no less discriminatory way to achieve the same objective. The perception, given to some, that blanket approaches can be adopted, could lead to this consideration being overlooked.
Finally, the guidance makes no reference at all to non-binary individuals who are an increasingly large demographic and seem to pose a specific quandary for service providers with single-sex services or spaces.
There are real concerns that, far from providing clarity to service providers, this new guidance confuses the situation. There is a material risk that service providers will stumble across this more recent guidance and not find the statutory code. This could lead to them missing the nuance of the law in this area and sleepwalking into non-compliance while, ironically, trying to do the right thing.
Given its non-statutory status, the guidance should therefore be treated with caution. The statutory code and the black letter law of the Equality Act 2010 remain the primary sources of information in this area and as mentioned above, following the guidance will provide no defence to claims for discrimination.
Taking into account the complexities in this area, the requirement to consider situations on a case by case basis and the obligation to ensure that service providers are adopting the least discriminatory approach to achieving the identified objective, we would recommend that service providers familiarise themselves with the statutory code of practice, consider engaging with trans groups where appropriate and practicable, and to take advice wherever possible.