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

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:

  1. People are more likely to comply without intervention if rules are clear, avoiding disputes and antagonism. 
  2. 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 .
  3. 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.