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A good question and a clear answer

This week Shadow Secretary of State for Women and Equalities Marsha de Cordova asked a good question about the single sex exceptions in the Equality Act.

Equalities Minister Kemi Badenoch gave a good and clear answer.

Providers have the right to restrict the use of spaces on the basis of sex, and exclude transgender people with or without a GRC if this is justified.

Kemi Badenoch, Equalities Minister, 2020

It is worth reflecting that she talked about “restricting the use of spaces” on the basis of sex.

How do you do this? A service provider sets a rule which applies to the space, based on sex: male or female only. And they communicate it.

Usually they do this with a simple pictogram like this:

This picture is not just a commonly understood cultural image, it is standardised internationally as part of ISO Standard 7001 . It explicitly means female facilities.

What does “if this is justified” mean? The Equality Act 2010 sets out common justifications for providing single sex services, including for reasons of ordinary, everyday bodily privacy and dignity.

Circumstances where a person of one sex might reasonably object to the presence of a person of the opposite sex

Equality Act 2010 – Schedule 3, Paragraph 27 (6)

In order to provide a single-sex service you need to have clear rules. As the Minister’s wording makes clear the rules apply to the space, not to each individual differently.

It is not possible to negotiate on a case-by-case basis to allow some into female only spaces, on the basis of their desire, their self-identification, their clothing and make-up, a diagnosis they might or might not have, hormones they might be taking, surgery they might have now or in the future, or a certificate which allows them to change their birth certificate.

None of that is relevant. A person of the opposite sex may still object.

The law is clear about clear rules

While there is very little case law about single sex services, there are relevant judgements about clear rules which come from cases on age discrimination. In particular Homer v West Yorkshire Police and Seldon v Clarkson Wright and Jakes (both concern whether rules about retirement age can be justified discrimination).

The judgment in Homer confirms that it is the fairness of a rule or policy which must be assessed, not its application to each individual person on a case-by-case basis.

Any exception has to be made for everyone who is adversely affected by the rule.

It considers the question of proportionality:

A measure may be appropriate to achieving the aim but go further than is (reasonably) necessary in order to do so and thus be disproportionate.

Is it disproportionate to have a clear policy that all members of one sex are excluded in order to provide members of the opposite sex with privacy, security and clarity?

Clearly not. A space is either single sex or mixed sex. The need for a clear rules justifies the clarity of the rule.

In the case of Seldon the judges recognised that “the avoidance of unseemly debates about capacity (of individual people at retirement age) is capable of being a legitimate aim.”

Similarly the avoidance of unseemly debates in toilets, changing rooms, showers, dormitories and other places where people undress seems very clearly a legitimate aim.

Kemi Badenoch did not promise any action by the government or the EHRC on clarifying this for service providers. But the Ministry of Housing, Communities & Local Government yesterday announced a Technical review on increasing accessibility and provision of toilets for men and women.

The announcement says:

The review will also look at signage, which should be clearer and use sex-specific language, to avoid confusion.

This is good news (and the consultation is open until January 29th, I am sure lots of women’s groups will provide inputs).

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