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The Equality and Human Rights Commission (EHRC), ‘watchdog’ for equal treatment and ‘advocate’ for greater social cohesion, has come in for a lot of criticism recently, for its failure to tackle Islamophobia or protect the rights of disabled people, and its antagonistic approach to the UK’s trans community.
The Equality Act 2010 lists various characteristics that should be specifically protected from discrimination, including sex and gender reassignment. However, the Act sets out some exempt scenarios in which treating people with those characteristics differently wouldn’t be unlawful, provided it’s a proportionate way of achieving a legitimate objective.
In April this year, the EHRC published ‘Separate and single-sex service providers: A guide on the Equality Act sex and gender reassignment provisions’. Beneath the complex title, this is a guide to help providers, from leisure centres to shelters, understand when they can restrict trans people from accessing certain services without breaching the Equality Act. The guide sets out scenarios in which providers might choose to exclude trans people. For example, following negative feedback from its customers, a community centre with separate male and female toilets tells users they can either use the toilet for their biological sex or a new gender-neutral toilet.
We instructed Ulele Burnham and Donnchadh Greene, of Doughty Street Chambers, to provide us with advice as to the lawfulness of the guide and its examples, should they be implemented.
You can read their advice in full here.
Many of the guide’s examples lean into crass gender-critical stereotypes, where trans women are likely to be (or be seen as) threatening and predatory, and trans men are vulnerable and in need of protection. They give scant regard to the need to show that each exclusion has a legitimate, proportionate objective. And the guide fails to explain whether it considers its own examples likely to be lawful or not.
Ulele and Donnchadh’s advice is that service providers who follow these examples and impose bans based on assumptions, without gathering evidence and conducting a proper balancing exercise first, will be acting unlawfully. In rare cases, for example in a women’s refuge, that balancing exercise could support an exclusion. In others, such as a fitness class, it’s almost impossible to see how it would.
While they conclude that there is little chance a legal challenge to the guide itself would be successful, if providers begin to use the guide in problematic ways, there will be significant scope for legal challenges.
We hope this advice helps public service providers understand that the guide has not changed the law and does not licence widespread trans exclusion. And we stand ready if we see that our hopes have been misplaced. We will be keeping a close eye on how this develops.
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