Everyone agrees that clear guidance is needed on the law on single and separate sex services. The government is soon to announce what it will do to bring that much needed clarity
Yesterday in the final days before this announcement is expected Rebecca Hilsenrath, CEO of the Equality and Human Rights Commission made a statement, YouGov released polling data and the House of Commons Library published a research briefing.
Do they help us get to clarity?
EHRC: inventing “special circumstances”
Hilsenrath’s statement recognises the need for unambiguous guidance. This is something EHRC could have provided but has refused to.
But she goes further in the wrong direction introducing the ambiguous idea of “special circumstances” as a requirement for excluding transgender people from services for the opposite sex:
In fact the Equality Act does not mention “special circumstances” for excluding male people from female-only services (and vice versa).
The protected characteristic of “gender reassignment” in the Equality Act 2010 is very broad. It treats someone as trans if they are so much as “proposing to undergo” a process of personal transition. This does not have to involve any medical treatment at all.
As Vera Baird, then Solicitor General, stated in 2009 when the bill that became the Equality Act was being debated.
Discrimination protection related to the characteristic “gender reassignment” is not a sliding scale. A person’s transition might involve things such as clothes, makeup and hairstyle, ‘feminine’ or ‘masculine’ behaviours. It could involve hormones, facial surgery, mastectomy or false breasts, and for a minority, genital surgery, but it does not have to. A person is protected straight away on proposing to transition, and does not get more protection against discrimination by taking more of these steps, or achieving a more convincing likeness with the opposite sex. These are things that they might to do feel ‘right’ in themselves but rights in relation to others cannot be given or taken away based on personal grooming, cosmetic surgery or the performance of sex stereotypes.
Furthermore, as the EHRC highlights in their Code of Practice people who start the gender reassignment process but then decide to stop also have the protected characteristic of gender reassignment.
In this sense, s.7 of the Equality Act operates even more broadly than self-ID – any man who says he intends to live as a woman is covered (and vice versa), and that coverage is forever, whatever they look like and whether they do or don’t consider themselves transitioned. The reason for this is that this protection is intended to be general (you should not lose your job for intending to transition, transitioning or detransitioning for example).
Section 7’s broad definition of ‘gender reassignment’ is not an access pass for spaces provided for the privacy or needs of members of the opposite sex.
It should be obvious that no “special circumstances” are needed to exclude a man who says he intends to “live as a woman” from communal services provided for the privacy, dignity or particular needs of women. If on Tuesday Colin declares Colin’s intention to transition it is as inappropriate to be in the women’s showers as it was on Monday. If Colin’s changes name to Cilla and pronouns to she/her and declares this a complete transition, this is fully valid on Cilla’s part. But still it does not confer the right to share intimate spaces with members of the opposite sex without their consent, and no “special circumstances” need be invoked to ask Cilla to respect other people’s privacy.
This is not a question of treating someone with the protected characteristic “gender reassignment” differently, but treating them the same as others (who also do not have the right to access services provided for members of the opposite sex).
Providing unisex options in addition to single/separate sex meets the needs of anyone at any stage of a personal transition who may not wish to share with members of their own sex.
The survey says: less than 50% of people agree that transgender people should be able to use services for the opposite sex, and even fewer if it is understood this is without surgery
The YouGov poll found that fewer than 50% of people in the UK think that trans people should be able to use changing rooms of the opposite sex. This number drops, and is overtaken by people who say absolutely not, when the question specifies that the person has not had genital surgery.
Legally, whether someone has had genital surgery or not does not determine their transgender status (either under the Equality Act or the Gender Recognition Act) . And in practice it would be inappropriate to ask. In a situation (such as a hospital or a workplace) where the organisation is in a position to know whether a person has had surgery it would be inappropriate for them to share this information with other users of a single sex space.
Clear and unambiguous guidance cannot tell service providers or users that access is offered on the basis of gender reassignment surgery, clothing or appearance.
House of Commons research: Skipping over the single sex exceptions altogether
It is late in the day of this debate for the House of Commons Library to be publishing basic research. And stunningly its new research briefing on Gender recognition and the rights of transgender people. gets the Equality Act wrong.
In setting out the legal basis for single sex services it skips straight over the single and separate sex exceptions themselves (Schedule 3 paragraphs 26 and 27 of the Equality Act 2010) and goes straight to paragraph 28 which focuses on “gender reassignment discrimination” in services.
It is paragraphs 26 and 27 of Schedule 3 the Equality Act which set out reasons why it may be a proportionate means of achieving a legitimate aim to provide single and separate sex services (including for everyday bodily privacy: in circumstances where it is reasonable for one person to object to the presence of a person of the opposite sex).
As explained above (and by discrimination lawyer Audrey Ludwig ) having the protected characteristic “gender reassignment” does not mean that a person loses the protected characteristic of sex. And if someone does not have a Gender Recognition Certificate, then unambiguously their legal sex is the same as it was the day they were born.
It is paragraphs 26 and 27 and their exceptions to the rules on sex discrimination which enables single and separate sex services (i.e. sex based rules) where they are justified.
The House of Commons briefing seems to be searching for the “special circumstances” argument and it zeroes in on the explanatory notes to paragraph 28 which state that:
In a group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.
Presumably this example in the guidance relates to a male-to-female transsexual person with a GRC (i.e. legally female), since a transsexual person without a GRC would be excluded on the basis of their sex (i.e. under paragraph 26, not 28).
Having skipped over what the actual law says about single and separate sex services, the House of Commons briefing further muddies the waters by saying that unnamed ‘legal commentators’ have “expressed concern” that this portion of the explanatory notes “overstates the exception” and argue “that the proportionality test imposes stricter requirements”:
It would be inadequate for a provider of services to assume female victims of sexual assault would necessarily object to a trans-woman attending group counselling sessions. A degree of canvassing of opinion would surely be required
This is an argument that has been advanced by legal commentator Alex Sharpe (who also ignores paragraphs 26 and 27).
The inappropriateness (and inhumanity) of the idea that women who have been raped should first have to answer questions about whether they are willing to to welcome a male person into a women-only counselling session (and potentially be shamed and called a bigot if they don’t), before they themselves can access help themselves should be obvious.
Furthermore there are no details about any individual male person who identifies as a woman which could be shared in this “canvasing” process; they may or may not have had surgery, they may appear unambiguously male, they may have been living ‘as a man’ until the day before. All of these details would be inappropriate to disclose, and none of them affect the protected characteristic of “gender reassignment”.
The clear and unambiguous guidance which the government and the EHRC recognises is needed has two options: either it must state that all males with the protected characteristic of gender reassignment have the right to use women-only services (as Stonewall, Gendered Intelligence, Mermaids and legal commentators urge them to do) or none of them do.
There is no other clear and unambiguous guidance on rights that is possible.
Males who wish to use share intimate spaces with women without their consent may prefer ambiguity and reference to unworkable “special circumstances”. But women and girl’s ability to wash, undress (and yes, use the toilet) in privacy, as well as to access specialist women-only services including refuges, hostels and prisons must mean the ability of institutions to unambiguously and clearly say “no” to males, including those that are members of other vulnerable and minority groups.