Category: Getting the Equality Act wrong

Losing sight of the law

Last year independent researchers, Kath Murray, Lucy Hunter Blackburn and Lisa McKenzie wrote a paper on policy capture: Losing sight of women’s rights, published in Scotland’s leading journal on current affairs by Edinburgh University Press.

It charts how public policy has shifted away from the law to allow people to ‘self identify’ as members of the opposite sex, and the impact of this on women’s rights. They provide case studies from Scotland in relation to the census and prisons as examples of “unregulated roll-out of gender self-identification”.

They argue that this is contrary to the law:

the Equality Act does not provide that those with the characteristic of gender reassignment have a general right of access to single-sex spaces and services based on gender self-identification, despite a common and influential assumption that it does.
Kath Murray, Lucy Hunter Blackburn and Lisa MacKenzie

The Equality Act covers the whole United Kingdom, so these debates have wider applicability than Scotland.

Edinburgh University Professor Sharon Cowan, together with Rebecca Hewer, Harry Josephine Giles, Becky Kaufmann, Meryl Kenny, Sean Morris and Katie Nicoll Baines disagree with this analysis and have responded in their own Scottish Affairs article this week. They say:

“we aim to correct some of the erroneous statements made by Murray et al about legal definitions of sex and gender, and about discrimination law. In critically engaging with Murray et al’s argument we aim to build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010.”
Sharon Cowan, Rebecca Hewer, Harry Josephine Giles, Becky Kaufmann, Meryl Kenny, Sean Morris and Katie Nicoll Baines

This is an influential group. Cowan is was until recently Deputy Head of the Law School. Kenny is Senior Lecturer in Gender and Politics and a member of the steering group of the cross-party Women5050 campaign for legal gender quotas in Scotland.

Sharon Cowan
Rebecca Hewer
Harry Josephine Giles
Becky Kauffman

Meryl Kenny
Katie Nichol Baines
Sean Morris

Their criticism of Murray, Blackburn and MacKenzie is extraordinarily harsh, not simply disagreeing with them but accusing them of a “lack of rigour in their scholarship” which they say “results in an argument wanting in accuracy and balance”. Harry Josephine Giles has previously called the paper a “poorly-sourced conspiracy theory masquerading as an academic case study”.

Murray, Blackburn and Mackenzie have responded, painstakingly going through the accusations. The battle of warring footnotes is well worth reading, and goes into the substantive issues and questions in more detail than I can in a blog post.

I want to draw out one point in particular: Cowan et al’s explanation of why they believe that the Equality Act gives people the right to self-identity into opposite sex services. Their paper is perhaps the most fully articulated statement of this by legal scholars and has already been praised by others in the field who argue similarly such as Alex Sharpe and Peter Dunne.

As Murray Blackburn and Mackenzie note:

The position they represent has, until very recently, been asserted rather than explained, making serious scrutiny by legal specialists difficult.
Murray, Blackburn, MacKenzie

Single and separate sex services are commonplace but the exceptions in the Equality Act are “rarely used”?

Cowan et al’s paper reveals that their interpretation rests on an extraordinary view that the single and separate sex services exceptions in the Equality can only rarely be applied, in the narrowest of circumstances.

It is hard to reconcile this with the everyday reality that separate and single sex facilities are routinely provided in schools, colleges, gyms, shopping centres, pubs, clubs, public conveniences, hospitals and care settings, workplaces and leisure facilities in every city, town,and village in the country, and are included in regulations covering workplaces, buildings, schools and licensed premises.

The critical paragraphs from Cowan et al’s article are reproduced below [My emphasis added]

Under Schedule 3 paragraphs 26 and 27, the exceptions relating to sex discrimination in the provision of separate services and single sex services are even narrower. The service provider must again show that providing separate or single-sex services is a proportionate means of achieving a legitimate aim. But under paragraph 26, in providing separate services for the sexes, they also have to show that providing joint services would be less effective. Further, according to paragraph 26 (2) (the provision of separate services differently), the service provider must show that it is not reasonably practicable to provide the service otherwise than as a separate service provided differently for each sex. And under paragraph 27 (single-sex services), the service provider also has to meet all of the conditions set out under sub-paragraphs 2-7.

Thus, the provisions of the 2010 Act set in place stringent criteria that must be met in order for a service provider to exclude anyone (either on the basis of gender reassignment or sex) from separate or single-sex services.

This is a bizarre interpretation of the Equality Act.

How the exceptions really work

The Equality Act makes it generally unlawful to discriminate against people on the basis of a protected characteristic. For example signs like this are unlawful.

However signs like this are lawful and in everyday use:

Similarly there are many occasions when organisations discriminate lawfully on the basis of other protected characteristics:

Exceptions are not exceptional

The Equality Act recognises that there are many everyday situations where discrimination is justified (the word ‘exception’ appears 137 times in the Act). The fact that they are called exceptions does not mean that they can only be applied in extremely rare circumstances or on an individual case-by-case basis. Rather it allows clear rules which are an exception to the general prohibition of discrimination.

Cowan et al, inexplicably, seem to believe that organisations around the country are wantonly putting up signs and policies which restrict service or employment to “men only” or “women only” without relying on specific Equality Act exceptions against sex discrimination.

In fact the Equality Act sets out routine and ordinary circumstances where it is legitimate to provide services (or restrict associated employment) to either sex. A common reason is “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex” (i.e. for bodily privacy).

Cowan et al argue that the test of whether providing separate/single-sex services meets the Equality Act’s requirement of being “a proportionate means of achieving a legitimate aim” is a high bar that is rarely met.

This again is a bizarre interpretation. Workplace, buildings and school regulations require the provision of toilets, washing facilities and changing rooms separately for the two sexes. Similarly, local authority licensing regulations also require restaurants, pubs and other venues to provide separate male and female toilets. Meeting these basic regulatory requirements is, in itself, surely a “legitimate aim”.

Law professors misreading the Equality Act

Cowan et al go on to make the jaw dropping claim that in order to provide a single sex service the service provider “has to meet all of the conditions set out under sub-paragraphs 2-7” of paragraph 27”

Sharon Cowan, Rebecca Hewer, Harry Josephine Giles, Becky Kaufmann, Meryl Kenny, Sean Morris and Katie Nicoll Baines (2020) argue that in order to provide a single sex service ALL of these conditions need to be met simultaneously

(2) Only persons of that sex have need of the service.
(3) There is joint provision for both sexes but that is not sufficient on its own
(4) If the service were provided for men and women jointly, it would not be as effective and it is not reasonably practicable to provide separate services for each sex
(5)They are provided in a hospital or other place where users need special attention
(6)They may be used by more than one person and a woman might object to the presence of a man (or vice versa)
(7) They may involve physical contact between a user and someone else and that other person may reasonably object if the user is of the opposite sex.

This would mean that single sex services could only be provided in the logically impossible situation where the service is only needed by people of one sex (2) and also the service is provided jointly for both sexes (3).

The examples in the notes to the Equality Act mention a womans refuge (4) department store changing rooms (6) and a female massage therapist operating in her clients’ homes (7). Cowan et al’s interpretation suggest that to be provided on a single sex basis these services must be being offered inside a hospital (5).

In fact, as Murray, Blackburn and MacKenzie point out the law doesn’t say “all” at all here (Schedule 3 paragraph 27 1 a) but “any”. Which makes much more sense.

The big question: does Section 7 change someone’s sex?

In addition to arguing that paragraphs 26 and 27 can almost never be applied (despite the fact that single and separate sex services are commonplace), Cowan et al say that they definitely cannot be applied to exclude someone on the basis of sex if the person identifies as transgender and thus come under Section 7 of the Equality Act (the wide definition of gender reassignment). Rather, they say paragraph 28 must be used. They say (without any justification) that the conditions for this are also extremely narrow.

They conclude:

Paragraphs 26 and 27 of Schedule 3 of the Act deal with sex discrimination exceptions, and paragraph 28 deals with gender reassignment exceptions. The default position, therefore, is that you cannot discriminate.
Cowan et al

This is a fundamental misunderstanding of the single and separate sex exceptions.

In fact one of the authors Harry Josephine Giles recently gave a more conventional interpretation (on twitter):

If you’re legally male, you can be excluded from single sex spaces by default. If you’re legally female, you can be excluded if you also have the protected characteristic of gender reassignment (i.e. are trans) and it’s proportionate and legitimate to do so.
Harry Josephine Giles

Under the Equality Act 2010 the default is that you cannot discriminate. Most parts of public life are mixed sex, so your sex doesn’t matter. But you can discriminate based on sex where sex matters such as in single sex toilets, showers, dormitories, changing rooms, hospital wards women’s refuges, prisons, sports and so on (otherwise how else could you provide them?)

Notably the only case law related to sex and gender reassignment discrimination that the legal scholars reference is Brook v Tasker 2014 (a case from a lower court in which no legal arguments were heard or reasons recorded). They don’t discuss the higher court cases of Croft v Royal Mail or Green v Secretary of State. They rely heavily on the EHRC Code of Practice for service providers but dispute the EHRC’s more recent statement from 2018 clarifying that the protected characteristic of Gender Reassignment (section 7) does not change a person’s sex (as confirmed in both Croft and Green).

Avoiding the question

Last week Professor Sharon Cowan could be seen presenting at a webinar hosted by the Scottish gender equality charity Engender alongside Lynn Welsh, the head of legal for EHRC Scotland and Nicole Busby who wrote a report on this question for Engender.

Cowan argued that “the law in this area is sometimes a bit slow to catch up” and argued for a flexible approach and a “dynamic legal framework”.

Given Cowan et al’s blistering criticism of Murray, Blackburn and Mackenzie over their agreement with EHRC you would have thought this would be an opportunity for the Professor to similarly take the regulator’s Head of Legal to task, but Professor Cowan did not mention this issue.

At the end of the webinar, a set of audience questions were put to the panel, including one that pointed to this area of dispute between the Professor and the regulator: “does being covered by gender reassignment change a person’s sex for the purposes of the Equality Act 2010?”

Nicole Busby who wrote a report on this for Engender skipped that question.

Lynn Welsh of the EHRC said she hadn’t heard it:

“… my apologies, I have scribbled it down but not properly”

Alys Mumford, Engender’s communications and engagement manager helpfully repeated it.

“The question is: does being covered by gender reassignment change a person’s sex for the purposes of the Equality Act 2010?”

Welsh had nowhere to go but to reply:

No. Is the short answer…..gender reassignment would be a characteristic that you held along with sex, and disability, or religion or age
Lynn Welsh, EHRC Scotland

She didn’t expand on what this means in practice in relation to the claims made in the rest of the webinar that the Equality Act allows people to self ID into opposite sex services.

Emma went back to Professor Cowan who said

“I don’t know what happened but I didn’t hear question two either, but happy that Lynn spoke to that…. but section 7….I didn’t catch it….. you cut out slightly Emma here.”

Emma from Engender let the most interesting question drop.

Asked what would she change about the Equality Act, Cowan called for “gender” to be added to the protected characteristic of sex.

Not letting the question drop

Earlier this week SNP MP Joanna Cherry got a chance to question the incoming Chair of the EHRC, Baroness Kishwer Falkner. She raised the question of policy capture (aka the law being “a bit slow to catch up” with what influential activists would like us to believe it says).

Cherry asked “You see human rights and equality as intertwined. Do you agree that it is important that we look at each of the protected characteristics as equal and deserving of enforcement?”

Baroness Falkner replied “There has never been a hierarchy of rights – the reason they have not been given hierarchy is because they are equal”

After a general discussion of conflicting rights Cherry raised the specifics “there is a heated debate in the public sphere between those with the protected characteristic of gender reassignment and those with the protected characteristic of sex, in relation to single sex spaces. Is it the duty of EHRC to approach all cases with a fair balance of interests rather than framing one over the other?”

Baroness Falkner said “as a principle absolutely right, but specificities would depend on the policy framework and the strategic aims of the particular case”

Cherry pressed on “Doesn’t it come down to what the Equality Act says? What the law is?”

Baroness Falkner said “Yes indeed it does, that is why I referred to policy.”

Joanna Cherry (who has obviously read Murray, Blackburn and Mackenzie’s excellent paper on policy capture) said

Would you agree with me that all guidance issued by EHRC should be grounded in statute and case law, and that sometimes policy can be removed from statute and case law? What underpins the EHRC should be the Equality Act and the Human Rights Act?
Joanna Cherry QC, MP

“Yes” said the incoming head of the EHRC ” I agree”.

Postscript: Do read Murray, Blackburn and Mackenzie‘s response to Cowan et al. It is long but worth your time.

They include in Section 6 a shocking but all too familiar account of what happened after they submitted the paper for publication; a member of staff at the university press complained, describing it as transphobic, and comparable with anti-Semitic, homophobic, Islamophobic and sexist opinion, putting its publication into months of uncertainty. Although the journal stood fast, Lisa MacKenzie was placed under investigation at work (in an unrelated job). When they presented the paper at a University of Edinburgh event, the event itself was characterised as transphobic and hateful on social media in posts shared by university members, including two of the co-authors of the response paper.

The work that Lucy, Kath and Lisa do is invaluable, and the extent of their bravery and integrity in standing up to establishment voices seeking to shut them down and smear their reputation at every turn can not be overstated. Their work is not funded by any university, foundation or public entity – they are running a crowdfunder here for the next projects they want to work on to expose policy capture and defend women’s rights.

Getting the Equality Act wrong

The authority that regulates security in pubs and clubs says “who needs rules?” when it comes to women’s privacy

Post author By Maya Forstater
Post date August 31, 2020
No Comments on The authority that regulates security in pubs and clubs says “who needs rules?” when it comes to women’s privacy

Single sex services are about rules. Ambiguity about whether someone has permission to be in a space where someone else is undressing is a recipe for trouble. With clear rules everyone can be treated with respect and kept safe.

Rules and policies provide three levels of protection:

People are more likely to comply without intervention if rules are clear, avoiding disputes and antagonism.
If there is a dispute or a difficult situation, applying a clear policy allows everyone to be treated with dignity. Policies can consider in advance how to deal with sensitive situations, in order to avoid argument, upset and uncertainty .
Clear rules and policies are critical for effective training of frontline staff to ensure that they are equipped to treat people fairly and with dignity, avoid putting themselves in compromised positions where they might be accused of harassment or assault, and are protected from assault or harassment themselves.

In 2018 the Women and Equality Select Committee undertook a inquiry into sexual harassment of women and girls in public places. It found that it is widespread, particularly in the “nighttime economy”. The Committee recommended that licensed premises should be required to have a policy to respond to and eliminate sexual harassment.

Allowing women and girls privacy when going to the toilet, washing and changing is a basic protection against sexual harassment and for keeping order (and it is something most venue owners, and frontline staff understand well).

The government did not agree that a new statutory requirement was required but said it would work closely with bodies such as the Security Industry Authority (SIA) to improve safeguarding. The SIA is the organisation responsible for regulating the private security industry: security guards, and door staff. They report to the Home Secretary.

“ Government and the SIA are both keen for the SIA to continue to play a key role in supporting wider safeguarding aims and raising awareness across the private security sector. With many thousands of licensed private security staff in regulated roles (i.e. door supervisors and security teams at clubs and bars), through SIA’s national licensing and mandatory training requirements private security operatives can contribute significantly to keeping keep women safe in the night time economy and preventing sexual harassment.”
Government response to the Inquiry on Sexual Harassment of Women and Girls in Public Places

I can find no further information about any action SIA have taken to improve safeguarding against sexual harassment on its website. Instead in 2018 they published an extraordinary four page guidance document “Trans customers: A guide for door supervisors”. Its advice contributes to making women less safe, and prevents security staff doing their job.

The guidance (which has recently been analysed by employment barrister Naomi Cunningham at Legal Feminist and on Twitter by @NoXYinXXprisons) says that security staff should allow customers, of either sex and whatever they look like to choose which toilets to use. It suggests that telling a male person that they cannot use the ladies is harassment, saying workers themselves may be held personally liable for it, and suggesting that actions may even be a hate crime.

In effect this guidance says ‘who needs rules?’ and seeks to frighten security staff away from enforcing them. It tells the very trusted people that women and girls should be able to turn to if they are surprised, frightened or upset by a man in the women’s toilets not to act to protect their dignity, privacy, safety and inclusion. It tells venues they cannot communicate clear sex-based policies or expect staff to enforce them, and it tells training providers that it cannot train staff on how to deal sensitively with people with gender dysphoria while maintaining single sex spaces. This is the exact opposite of what the regulator tasked with helping people feel secure should be doing.

The SIA guidance points to the Equality Act 2010, but it is a mishmash of misinformation. Venues, like all service providers are covered by the Equality Act 2010 which requires that they do not discriminate based on sex in providing a service, apart from where this is objectively justified. Providing toilets which give unambiguous privacy to both men and women is both justified and necessary. Building regulations and local authority licencing also make specific requirements to provide toilets for men and women.

The Equality Act says is that it is unlawful to refuse a service, or provide a worse standard of service, because a person is intending to undergo, are undergoing, or have undergone gender reassignment, but it this does not mean that people with this characteristic have the right to use single sex spaces for the opposite sex. What the Equality Act requires is that the venue considers whether additional provision or rules are needed to accommodate people who may be disadvantaged by a sex-based rule, not that they must allow anyone who wants to to break the rules.

No one should be harassed or abused for being transgender or gender non-conforming. But nor should women be sexually harassed by forcing them to go to the toilet or undress with males watching, listening or potentially taking sexual or other enjoyment from their discomfort and humiliation.

Communicating and enforcing single sex spaces requires clear and sensitive policies and training for frontline staff (this can also help to prevent mistakes, and ensure staff treat everyone sensitively and with dignity).

What is not needed is an “anything goes” attitude that removes all protection.

SIA’s inability to recognise the importance of clarity over single sex spaces may perhaps be traced to an overall confusion about the Equality Act. Their recently published “Standards of Behaviour for Security Operatives” fails to mention sex discrimination at all, instead substituting “gender”.

The Women and Equality Select Committee inquiry into sexual harassment of women and girls in public places also heard from the Equality and Human Rights Commission. The EHRC said their focus was on sexual harassment in the workplace and argued they have limited opportunities for enforcement action in relation to the harassment of women and girls in public spaces, particularly in relation to private businesses and voluntary sector organisations.

The Committee disagreed with this “not our problem, guv” attitude. It said:

“We believe that the Commission is wrongly interpreting its powers in relation to sexual harassment of women and girls in public places and should take a wider view of its role in addressing this issue. The prohibition on sexual harassment in the Equality Act 2010 applies to clubs, bars, shops and other private service providers and the EHRC can enforce this.”
Inquiry into Sexual Harassment of Women and Girls in Public Places

It is very much in the EHRC’s powers to take enforcement action against organisations that do not provide basic privacy for women and girls in toilets, showers and changing rooms. Furthermore, when organisations are driven to do this by misinterpretation of the Equality Act itself it is absolutely the EHRC’s job to clear up this misunderstanding. Its failure to do this makes it complicit in institutionalising sexual harassment and discrimination against women and girls.

The first recommendation of the Women and Equality Select Committee Inquiry on Sexual Harassment of Women and Girls in Public Places was that EHRC should set out a plan of action for working with other regulators to ensure that the prevalence and impact of sexual harassment in public places, and the effectiveness of actions being taken to eliminate it, are transparent.

The Government’s response was that the EHRC would respond to this recommendation.

As far as I can see the EHRC never did.

Ann Sinnott is taking the EHRC and the Government Equalities Office to judicial review over their misleading guidance on the Equality Act and single sex services – you can support the case here.

Getting the Equality Act wrong

Aleardo Zanghellini

Aleardo Zanghellini is a Professor of Law and Social Theory at Reading University. He recently published an article in the Sage Open Journal on Philosophical Problems With the Gender-Critical Feminist Argument Against Trans Inclusion.

He does not define what he means by “trans inclusion”. But over the course of the article it becomes clear he does not mean general inclusion in employment, housing, healthcare, or in public life. Specifically he means inclusion of people who identify as trans in single sex services provided for members of the opposite sex: ““[t]oilets, changing rooms, girls’ youth organisations, hostels, and prisons” and so on.

The article is largely an extended diatribe targeting the public philosophy of Professor Kathleen Stock. Zanghelli also criticises ‘gender critical’ thinkers in general for publishing primarily on sites such as The Conversation and Medium. These platforms he says “offer us both the opportunity and the temptation to cut (academic) corners in becoming “influencers,” unlike traditional peer review processes, which are designed to make influence and recognition a by-product of, and contingent on, genuine communicative action.”

What is a law professor doing writing an article on philosophy? This kind of sideways move can also be a short cut to getting a peer reviewed article, where the content wouldn’t stand up to peer review in your own discipline.

Luckily someone else has done a sterling job of picking apart the specious philosophical arguments: the hasty conclusions, misplaced burden of proof, faulty comparison, double standards, and ad hominem arguments.

I just want to highlight one thing. Professor Zanghellini gets the central point about the law wrong.

Zanghelli says:

” trans people already have a right to access gender-segregated spaces congruent with their gender identity, regardless of their gender presentation, and regardless of whether or not they are in possession of a gender recognition certificate.”
Aleardo Zanghellini

Just to be clear what Zanghellini is claiming here – whatever someone looks like, and regardless of whether they have had any diagnosis, treatment or surgery; if they say their gender identity is aligned with the opposite sex they have the right to access single sex spaces – like toilets, showers, changing rooms and dormitories shared with members of the opposite sex.

He says this the the combined effect of sections 7 and 29 of the Equality Act 2010.

Section 7 is the part of the Equality Act which defines the protected characteristic “gender reassignment”:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
Equality Act 2010, Section 7

The definition of “gender reassignment” in the Act is necessarily broad (because a person shouldn’t lose their job because they intend to transition etc..)

Section 29 is the part of the Act about discrimination by service providers. It basically says that it is unlawful to discriminate against or harass a person because of a protected characteristic.

Zanghellini says these two sections combine to mean that male people with the protected characteristic ‘gender reassignment’ have the right to use services for women.

This is nonsense. Section 29 means service providers should not generally exclude people from services because of factors such as age, race, disability, sex or gender reassignment.

Single sex services are a specific legal exceptions to section 29, where service providers are allowed to discriminate based on sex . Oddly enough Zanghelli does not reference the parts of the legislation which allow for single sex service (the main place is Schedule 3 paragraphs 26 and 27 ).

Section 29 also combines with other definitions such as age (S.5), disability (S.6) and race (S.9). None of this means that men with these protected characteristics have the right to access single or seperate sex spaces for women as provided for by Sch 3 p 26 & 27 (as it would according to Zanghellini’s logic)

Where does the law professor get the idea that the Equality Act gives men the right to self-identify into spaces where women and girls are undressing?

He only gives one reference in his paper to support the legal part of the analysis – that is to an article in The Conversation by Professor Alex Sharpe.

Sharpe also gets an acknowledgment for reviewing Zanghellini’s article, and gave it the thumbs up on Twitter.

Perhaps Zanghellini should take his own advice on quality and robustness in academic publishing and get out of his social media bubble?

Here are two papers I recommend that are worth reading:

Komorowski, J. 2020. Sex and the Equality Act, Journal of the Law Society of Scotland, Volume 65, Issue 1.

Murray, K and Blackburn, LH. 2019. Losing sight of women’s rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland, Scottish Affairs, Volume 28, Issue 3.

And one more, Whitfield, L. 2016. How Legislation Protects Women Only Spaces and Services: an overview.