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Myths about the equality act

“They are rarely used”

The Single and Separate Sex Exceptions in the Equality Act 2010 are the bit of UK law which allows single sex services. They are tucked away in Schedule 3, Part 7, Paragraphs 26 and 27 and it is sometimes said they are ‘rarely used’, or that service providers have to choose to use them in exceptional circumstances. This is a myth and a misunderstanding.

Single sex spaces, such as women’s and men’s changing rooms, toilets, dormitories, hospital wards, and women’s refuges are not natural features of the landscape; like mountains or rivers to be explored. They are created through plans, policies and rules – service providers create a single sex space by adopting a policy that an area is only open to people of one sex (and in some cases their accompanying small children). In other word they discriminate. They communicate the discriminatory policy with words and signs.

Female sign

When you do that they are using the single sex exceptions in the Equality Act.

That is it.

A service provider doesn’t have to do anything else to use an exception (although it is always a good idea to consider the reason for policies, and write them down).

What the exceptions in the Act do is allow sex discrimination in situations where sex discrimination is justified. If challenged (including in court) the service provider can say the discriminatory policy, as communicated by the sign, is objectively justified and allowed by the Equality Act.

Using the exceptions does not mean service providers have to make a separate objective justification every time the policy is used (i.e. every time a person is excluded from sharing an intimate space with members of the opposite sex ; usually people just comply with the sign).

“But these are not ‘single sex services’ they are ‘single gender'”

Some people make an argument that despite such single sex services being an everyday feature of of life — in schools, colleges, shopping centres, gyms, parks up and down the country — the Equality Act exceptions are nevertheless rarely used because these are not in fact single sex services, but something else: “single gender services”.

Thus they say these spaces are not covered by the Equality Act at all.

This is nonsense on stilts.

Firstly the kinds of services that are provided on a single sex basis are exactly the kinds of situations that are covered by the criteria set out in Schedule 3 Part 7 of the Equality Act and mentioned in the explanatory notes.

Secondly, most people understand the words man and woman, male and female and the associated symbols to mean a person’s sex. You might say “gender”, but most people will answer with their sex, and not realise you were meaning some other concept (and it is never clear what is meant by gender). They could well object to sharing an intimate space with a person of the opposite sex, having not given their consent.

Thirdly the Equality Act also includes “discrimination by perception”. One meaning of gender is “the sex that other people perceive you to be”. Thus if a service provider were to try to justify a discriminatory policy by saying the sign doesn’t mean sex but “the sex you are perceived to be by others” (and you call that ‘gender’) they would still be discriminating on the basis of the protected characteristic of sex. They would still be relying on the single sex exceptions (an employer couldn’t for example have a policy of only hiring men for senior positions and get away with saying that it is based on their “gender” (perceived sex), and therefore it is not sex discrimination).

Finally the Equality Act also includes indirect discrimination. That is, applying a rule which applies equally to everyone but which affects certain groups differently. So if a service provider writes down that their policy is to provide ‘gender’ segregated spaces based on internal feelings of “gender identity” and not sex, they are still likely to be discriminating on the basis of sex since most people without a degree in gender studies will still understand that the sign means their sex. This would be like a having a policy of saying you won’t employ people called Singh and arguing that it is definitely not religious or race discrimination.

What these word games, and arguments that “single sex services are uncommon”, or are “not really single sex services” are designed to do is to distract from the reason for single sex services in the first place.

The most common reason, which is allowed for in the Equality Act at Schedule 3, Paragraph 27 (6), is bodily privacy ” when a person of one sex might reasonably object to the presence of a person of the opposite sex.”

Single sex services are by their nature not for everyone, and people who don’t want to share with others of the same sex can usually be accommodated in unisex facilities. What they cannot do is demand to share intimate spaces with members of the opposite sex without their consent.

Protecting everyone’s rights and dignity means being clear about whether a service is single sex or mixed sex. This requires clear, unambiguous rules, not word games designed to confuse.

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CPS Guidance undermining consent withdrawn

The Crown Prosecution Service has withdrawn an anti-bullying guidance pack for schools developed with Stonewall and Gendered Intelligence, after a 14-year-old girl brought a legal action.

The pack, which has been withdrawn for review, encouraged schools to tell girls to ignore their discomfort and not object to males entering single sex spaces such as toilets and changing rooms.

One of its teaching exercises features a video scenario where an adult male presenting in a feminine style enters the women’s toilets. Two young women at the sinks whisper their discomfort: “What’s he doing in here? This is the Ladies”. The next time the person uses the Gents’ where two middle-aged men shout abuse and bang on the door.

The class discussion guidance says

“Ask the students what happened in the clip. Thinking about how the girl in the clip was treated, can the class understand why she might have felt hesitant about going into the toilets?”

CPS Pack

(by ‘girl’ here they mean the adult male)

As the legal letter to the CPS points out it is not safe for girls to learn that they should consider an adult male using a facility intended for their bodily privacy as a ‘girl’.

The activity sheet asks:

Can you say why the person went into the ladies’ toilets and not the mens’ toilets? How did the women behave towards her? How did that make her feel?

As the legal letter say these questions suggests that it was the young woman’s fault that the men harassed the feminine presenting male.

The guidance tells pupils that transgender people must be supported to use all the facilities “appropriate for the gender with which they identify themselves”. It goes on to suggest that a school offering the unisex, accessible toilets is not an acceptable solution for a male who does not feel comfortable using the mens.

The guidance completely fails to consider the feelings of women who may feel genuinely threatened.

Letter from Sinclairs Law to the CPS

Girls are taught that they should not make a male entering the women’s toilet feel ‘unwanted’, indeed the pack suggests that this might be a police incident or a hate crime.

Following the lawyer’s letter-before-action (supported by The Safe Schools Alliance and Faircop) the CPS has withdrew the guidance for review.

Certainly the CPS and the Police who produced the pack will have to consider whether the guidance is worth defending in court. But hopefully it has reached the attention of someone within the hierarchy with the sense and decency to be appalled that some corner of their organisation has have been issuing guidance that undermines girls’ consent in name of inclusion.

Hopefully, more organisations are remembering that girls and women have rights to bodily privacy. In a rush to support transgender peoples’ human rights and get gold stars from Stonewall they may have forgotten why single sex spaces exist in the first place.

The teenager who brought the legal action, with the Safe Schools Alliance said:

“I’m happy that I’ve been able to have helped girls all over the country keep their right to say no and not get accused of bullying.”

Teenage girl who brought the case
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Baroness Nicholson writes to the Minister

Baroness Nicholson has written to Liz Truss highlighting that the Equality Act is misrepresenting in official guidance.

I see the wording of the Equality Act 2010 has been distorted which results in departmental and institutional guidelines which differ significantly from the Act; and have been wrongly laid down as correct.

Leading to….

extraordinary results for the professionals required to implement the guidance and for the population, especially girls and women whose traditional rights to privacy, dignity, personal identity, and honour have been bent outside of all recognition of normal behaviour patterns.

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Edward Lord Responds on Single Sex Spaces – and that survey

Edward Lord, Deputy of the City of London wrote to Liz Truss saying that based on a City of London survey “the findings are clear” single sex spaces should be open to people of the opposite sex based on gender identity.

“Shortly after taking up my current role in the City of London, the Corporation launched its own consultation in respect of transgender inclusion to inform our policy on gender identity in our service delivery and employment practices. This was in response to concerns expressed by some anti-trans campaigners who challenged the Corporation’s interpretation of the Equality Act to permit trans women to use the Highgate Women’s Pond on Hampstead Heath.

As part of the policy formulation exercise, we put out an open access online opinion survey asking a range of questions about attitudes towards trans people and their access to public services. The findings were very clear. Of the 21,191 respondents who completed our survey (of whom 53% were women):

68% agreed that ‘a person who consistently identifies with a gender (being different from the gender assigned to them at birth) should be able to access services commonly provided to that gender’; and

Women were in a majority of all of those positive responses.

Edward Lord, Letter to Liz Truss

The findings are clear?

You may remember that survey. Here is the report from it.

The survey process was overseen by Edward Lord, Chairman of the Establishment Committee of the City of London Corporation who has strong views on this topic. As Lord says in their letter to Liz Truss they view they view people who raised concerns at the loss of single sex spaces as “anti-trans campaigners”. Those who agreed with Lord’s view they call “positive responses”.

Edward Lord who identifies as neither wholly male or female

The headline finding is that 68% of respondents agree that a person who “consistently identifies with a gender which is different from the one they were assigned at birth should be able to access services commonly provided to the gender with which they now identify”

Around a quarter disagree. One of the members of the “Establishment Committee” commented that those who disagree need to have their attitudes changed, and asked for details of the answers from city workers.

A Member commented that he would encourage officers to question the responses which were least in agreement with the questions posed in the survey, particularly if those were City of London workers. The Member added that in order to change attitudes, it is necessary to understand why people hold certain views, and asked officers to look at getting those answers.

Establishment Committee Meeting Minutes, December 2018

Lord blocks anyone who so much as follows accounts that disagree with their view that single sex spaces are exclusionary.

As last count at least 1,821 people that had been blocked by Edward Lord, of which 83% were women, only 5% had ever interacted with the elected politician.

An oddly discrete survey

The survey was mainly promoted by being tweeted from Edward Lord’s twitter account. As University College London social sciences professor Alice Sullivan, pointed out at the time, the consultation was been handled in an “oddly discreet way”.

“Apparently it was first tweeted in early July but I did not find out about it until early August,” she added. “They only informed the Parliament Hill running track users group about the consultation after I prompted them to do so, yet it affects the track changing rooms. As a survey researcher, I know a good survey asks specific questions in clear English. This consultation does not do that. It asks vague questions which many people won’t understand.”

Alice Sullivan, UCL Professor

Confusing language

The survey does not explain which services the city of London manages and therefore what kinds of services and situations the questions cover in practice. 

A sign at one of Hampstead Heath’s previously single sex ponds

The survey conflated sex and gender and uses confusing language such as “gender assigned at birth”. Most ordinary people would have no idea what this relates to: is it intersex people? People who have had ‘sex change operations’? Few would have an inkling that it could just mean people who have changed their pronouns.

This was raised before the survey closed by several respondents . Marcus Roberts of the City of London told them:  

“Regarding the survey, we need to review our use of the terms “sex” and “gender” to ensure we are getting this right going forward. However with the survey now live, I am confident that it allows respondents to make the points that you make in your e-mail – including raising concerns about the language of the survey (using the free text boxes). We will then reflect on these responses as part of  our review of how we should take policy forward.”

Marcus Roberts Head of Strategy and Performance, Department of Community and Children’s Service, City of London

Nothing was ever heard again about clarifying this.

So who answered the survey?

Since the survey mainly went out though Edward Lord’ networks the survey responses are severely skewed. Young people were overrepresented with 12 responses from 18 to 35  year olds for every one from over 45 year olds. Nearly a quarter of the respondents said they are bisexual (23%), a very high proportion compared to the general population. Replies from people not living anywhere near the City of London swamped those that came from residents of the City of London’s housing estates or users of services such as the atheletics changing rooms and ponds on Hampstead Heath .

While the survey was self selecting rather than a representative survey, it would at least be possible to break down the results by different demographic groups – in practice the independent consultants only report the headline that twice as many respondents agree with the proposal “that where facilities are restricted by gender, those restriction should relate to the gender with which the service user consistently identifies now”. Given the clear a lack of representativeness the survey respondents there is no validity to this finding. 

The Equality Act?

The survey was analysed by a firm called “Smart Consult” who operate out of a mailbox in East London. They said “Comments that are abusive, discriminatory and/or contrary to the Equality Act 2010 have not been used in this report.”

Smart Consult’s address

How did they know which comments were “contrary to the Equality Act?” It seems they asked the City Corporation.

Some felt that the consultation was inconsistent with the Equality Act 2010 in the way it used the terms ‘sex’ and ‘gender’” a claim that was considered and rejected by the City Corporation. 

Smart Consult survey report

Who was that then?

That would be Edward Lord, as October 2018 minutes of the committee meeting showed:

“The Chair explained that access to the Corporation’s services and facilities is not an area where the Corporation would have much discretion, and nor should it. It was explained that the Equality Act 2010, ensures that trans people, or those with the protected characteristic of ‘gender reassignment’ should not be discriminated against in any service or facility and public authorities like the City of London Corporation have a legal duty to ensure trans people are included through all of its services. The Chair further advised that this is what the policy refresh is about: giving all of the City of London Corporation’s services and facilities a policy framework together with support and guidance to ensure that trans and non-binary people have equal access.”

Establishment Committee, October 2018

The ‘independent consultant’s report states that restricting access to services depending on ‘biological sex’ “would be inconsistent with the Equality Act 2010, other than in exceptional circumstances”. They do not reference this statement and it seems likely that they are simply repeating back what they have been told by their client. 

So in summary:

  • The survey was massively skewed towards Edward Lord’s personal networks and away from the many women they have blocked on social media.
  • Older people were particularly underrepresented.
  • The survey’s language was incomprehensible most people would not understand what was being proposed.
  • The interpretation of the Equality Act in the independent consultants report is not referenced to any lawyers, and seems to be Edward Lord’s view.
  • Comments which disagreed with this interpretation of the Equality Act were not included in the report.
  • Still over a quarter of respondents disagreed with the proposition that access to single sex services should be based on gender identity. Their responses were not deemed to matter. The Establishment Committee instead discussed how to change their attitudes.

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Nine women’s groups respond on Single Sex Spaces

Fair Play for Women, FiLiA and all of the women’s declaration groups from across the Conservative, Labour, Lib Dem, SNP, Green and Women’s Equality Party sent this letter to Liz Truss.

“Everyday single sex spaces are particularly important for women and girls. The question about whether a space is single sex or mixed sex shouldn’t be ambiguous to customers or to staff. Everyone deserves peace of mind, and to be treated with respect.
Clarity about single sex spaces is crucial for individual dignity, and
opportunity as it ensures that people of both sexes and people of all
religions, and ages are able to access work, education and leisure
opportunities which would not be available to them if they could not undress without assurance of not being overlooked by members of the opposite sex.”

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WPUK response on Single Sex Spaces

Women’s Place UK said

“We welcome the clear commitment by the Government to uphold all these existing rights and ensure they are properly understood by service providers and users. Work is now needed to ensure that any policy changes by councils, public services, other organisations and businesses which have leapt ahead of the law are revisited and, where necessary, revised so the right to single-sex provisions is properly respected and applied. It is also vital that women are properly represented and consulted in any policy making or changes to the law.”