What are the single sex exceptions in the Equality Act?

Today several mainstream media outlets have claimed that trans people do not have a legal right to access single-sex space, according to the government.  After weeks of media confusion over the scope of the Gender Recognition Act 2004, it seems that it is now the turn of the Equality Act 2010 to be misconstrued.  Inaccurate information about legislation relating to trans equality is unhelpful to organisations and businesses, and moreover, potentially harmful for trans women who stand to suffer an increase in harassment when accessing single-sex services.

Earlier this month, the Government Equalities Office released a statement in response to a petition from an anti-trans group to halt the planned reform of the Gender Recognition Act.  Use of single sex space is legislated in the Equality Act, and the government confirmed that it has no intention of changing any aspect of this Act. In short, this means trans people – covered by the Protected Characteristic of “gender reassignment” – continue to have the legal right to access facilities appropriate to their gender. Discrimination against trans people as customers and service users is still unlawful.

Today’s inaccurate media claims mainly come down to one point – the single sex exemptions in the Equality Act.  Under normal circumstances,  if service providers provide single or separate sex services,  trans men and women should be treated in accordance with their gender and access the services most appropriate for them. However, in limited circumstances, there are exceptions to this.

The “Services, Public Functions and Associations: Statutory Code of Practice” (EHRC, 2011) document provides useful guidance to the exceptions to this rule. It says service providers can provide a different service, or exclude a trans person, but this will only be lawful “where the exclusion is a proportionate means of achieving a legitimate aim”.  To clarify the nature of this exception, it says , “any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances”.

 Far from the blanket ban that today’s media suggests,  in general the exceptions can only be used where every way to enable full inclusion has been explored and no other option can be found. Under no circumstances should an organisation treat the exceptions as something it should do. An exception is a last resort.

The EHRC guidance advises that the needs of different service uses are weighed up, but that ,”Care should be taken in each case to avoid a decision based on ignorance or prejudice.  Also the provider will need to show that a less discriminatory way to achieve the objective was not available.

The onus is clearly on the service provider to demonstrate that a decision was not taken based on ignorance or prejudice, which begs the question – what is actually left when we have removed ignorance and prejudice from the equation?  We have seen many other groups denied rights on the basis of (often) essentialist arguments that are now clearly seen to be based entirely in ignorance and prejudice.

Single-sex exceptions to the Equality Act 2010 are generally applied in sensitive services, such as rape crisis and women’s refuges. In Scotland several women’s services are explicitly trans inclusive and offer guidance to similar organisations. Women’s services have to balance the needs of service users – both cis and trans – who are often extremely vulnerable and traumatised. They do vital and often harrowing work, in a sector that is increasingly underfunded. If they are able to model good practice, there is hope for all organisations to welcome and affirm trans people.

The existing Equality Act is far from perfect – for one, it provides no explicit protection for non-binary people. However, it is irresponsible, and indeed immoral, for the media to twist legislation to suggest that trans people can be lawfully barred from every day facilities and services. This kind of rhetoric empowers those who seek to harass and exclude trans people, especially trans women, from public space.

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