New guidance for organisations that provide single-sex spaces including toilets and changing rooms has been described as ‘appalling’ by an employment barrister, who believes employers that follow it could end up unlawfully discriminating against transgender people.
The Equality and Human Rights Commission (EHRC) guidance, Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions, states that trans people can be legitimately excluded from single-sex services for “justifiable and proportionate” reasons, which could include privacy, decency, to prevent trauma, or to ensure health and safety.
The government’s equality watchdog also advises that people who hold gender recognition certificates can be excluded from these spaces “if your action is a proportionate means of achieving a legitimate aim”.
The EHRC single-sex spaces guidance gives examples where it may be permissible to prevent a trans person from using a single-sex service, including a scenario where an organisation introduces a gender-neutral toilet, in addition to male and female toilets, and “puts up signs telling all users that they may use either the toilet for their biological sex or to use the gender neutral toilet”.
Transgender and non-binary employees
Baroness Kishwer Falkner, chair of the Equality and Human Rights Commission, said: “Our mission at the EHRC is to protect the rights of everyone and ensure that people across Britain are treated fairly. There is no place for discrimination against anyone based on their sex or gender reassignment.
“Where rights between groups compete, our duty as an independent regulator is to help providers of services and others to balance the needs of different users in line with the law.
“Organisations are legally allowed to restrict services to a single sex in some circumstances. But they need help to navigate this sensitive area. That is why we have published this guidance – to clarify the law and uphold everyone’s rights.”
However, Robin White, an employment barrister and co-author of A Practical Guide to Transgender Law, described the EHRC guidance as “legally non-compliant rubbish” that is at odds with the statutory guidance that has been laid before Parliament.
“What we have is the government body responsible for promoting equality putting out guidance that encourages organisations to act unlawfully,” she told Personnel Today.
“[Employers should] follow the statutory guidance that was published in 2010. Tear this up, ignore it. Employers and HR departments should not follow it because if they do it will lead them into unlawfulness.”
She said the guidance makes inaccurate claims about what the Equality Act says about sex and gender, as the Act does not mention biological sex and birth certificates, yet the EHRC’s notes that “a trans person who does not have a gender recognition certificate retains the sex recorded on their birth certificate for the purposes of the Act”.
An EHRC spokesperson said: “We’ve made our guidance as clear and understandable as possible, which is why we use the term ‘biological sex’ to explain legal terminology.
“The Equality Act, confirmed by case law, understands sex as binary – either female or male – and biological. A person can only legally change their sex by obtaining a gender recognition certificate.”
White noted that an employment tribunal is unlikely to find it “reasonable” for an employer to object to a trans woman using a toilet in a closed stall.
“Some people don’t like the idea that they might be in a toilet cubical next to a trans person. It’s fine for an employer to provide a separate facility, but the least discriminatory way will be to provide that separate facility for anyone who wants an additional degree of privacy, not insisting on the trans person [using it].”
A spokesperson for LGBT rights charity Stonewall said: “Far from clarifying how the single sex exemptions in the Equality Act should be used, the EHRC’s latest non-statutory guidance is likely to create more confusion. It appears to go against the core presumption of the Act which is that inclusion should be the starting point, and shifts the focus towards reasons trans people, and specifically trans women, can be excluded.
“The examples appear to encourage blanket bans, rather than by a case-by-case decision making, and cover restricting access to day to day settings like bathrooms and gym classes, which is extraordinary. This leaves more, not less confusion, and more, not less, risk of illegal discrimination.”
Maya Forstater, executive director of campaign group Sex Matters, said: “This new guidance is a big step forward. It recognises that everyone’s rights need to be balanced, and often the way to do this is with a policy based on biological sex, expressed clearly and simply. The new guidance provides examples of how trans people can be included without undermining other people’s dignity and privacy (for example with ‘gender-neutral’ options), and says that everyone should be treated with respect.”
Forstater, who last summer successfully challenged that her views on gender constituted a protected philosophical belief under the Equality Act at the Employment Appeal Tribunal, added: “The EHRC’s straightforward explanation should help service providers avoid the difficulties currently plaguing politicians when they are asked questions about the difference between sex and gender identity.”