There has been a lot of interest in human rights circles about this case and its refusal of permission to judicially review the guidance relating to single sex services. We will look at what the case was about and what the refusal to allow permission might mean. We start by introducing the parties.
The Claimant was Authentic Equity Alliance (“AEA), a community interest company established in 2018 to promote the personal and professional development of women and girls.
It was asking for permission for the courts to determine whether or not the EHRC’s (below introduced as the Defendant) guidance relating to single sex services was lawful.
The Defendant to the claim was the Equality and Human Rights Commission, (EHRC) a statutory non-departmental public body established by the Equality Act 2006. On its website it advertises itself in the following terms:
As a statutory non-departmental public body established by the Equality Act 2006, the Commission operates independently. We aim to be an expert and authoritative organisation that is a centre of excellence for evidence, analysis and equality and human rights law. We also aspire to be an essential point of contact for policy makers, public bodies and business.
Its job is to provide guidance and expertise on equality law. To that end it has produced various codes and documents, including the Statutory Code of Practice for Services, Public Functions and Associations (“the Code”), which is the authoritative guide to interpretation of the Equality Act.
Principal area of concern
AEA’s claim against the EHRC focused on one paragraph of the Code:
[Text: If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful when the exclusion is a proportionate means of achieving a legitimate aim.]
The Question of Lawfulness
The excerpt from the EHRC’s code which is copied out above relates to the Equality Act which allows service providers to run women only services (in Schedule 3). The Equality Act starts from a position of non-discrimination – the majority of services are available to everyone regardless of the nine protected characteristics – but accepts that there will be exceptions to this rule. Many of these are uncontroversial. It would be remarkable for someone to suggest that the Brownies are not entitled to discriminate on the basis of age, for example.
Justified Women Only Services
Women only services are exceptions to the starting point of non-discrimination and they are allowed under the conditions set out in Schedule 3.
Broadly (we paraphrase and are not delving into technical details here)
- It is lawful, and will not be sex discrimination, to offer single or separate sex services (SSS) when this is a proportionate means of achieving a legitimate aim (Paragraph 26 – 27 )
- it is lawful, and will not be gender reassignment discrimination, to offer SSS, if the conduct in question is a proportionate means of achieving a legitimate aim. (Paragraph 28)
The Substance of the Claim
The claim that was brought was, as the judge said at the end, complicated. A simplified – possibly oversimplified – summary is this:
Prescriptive Inclusion: The “Must” Approach
The Claimant, AEA, said that the phrase in the COP “should treat transsexual people according to the gender role in which they present” had wrongly led service providers to think that they must treat people according to the role in which they present. The Claimant provided evidence of various bodies which had adopted this position (as discussed below).
The Defendant, EHRC, said that
- the COP said “should,” not “must,”
- that exceptions were available, and
- that the bodies which had adopted the “must” position had not expressly said that they had had regard to the COP. On that basis, the EHRC said that those bodies cannot have been led, or misled, by the COP, as none of them mentioned it.
In fact, the EHRC said, a policy that said a service provider ‘must’ treat people according to the role in which they present would be “directly inconsistent” with the COP.
In other words – other bodies may well be making this unlawful assertion, but it ain’t us guv.
The EHRC suggested that if other bodies had unlawful policies, these should be challenged directly, rather than holding EHRC itself responsible for bodies which should have followed its guidance, but either did not do so or misunderstood it – although naturally, the EHRC was not willing to concede that anyone had been misled in the absence of a smoking gun in the form of a policy which said “and we got this off the EHRC Codes Of Practice”. This, as we will come to shortly, is important.
Extent of Justification Required
The Claimant said that if a service provider meets the first requirement (paragraphs 26-27 of schedule 3) and identifies that providing a woman only service is a ‘proportionate means of achieving a legitimate aim,’ it need not meet the second requirement (paragraph 28 of schedule 3) in order to lawfully provide a female-only or male-only service.
The ‘proportionate means of achieving a legitimate aim’ having been once identified for the purposes of providing the service at all to the exclusion of persons of the opposite sex, there was no need to re-invent the wheel by identifying it again for the purposes of excluding a person of the opposite sex who also had the protected characteristic of gender reassignment.
The EHRC said that this was wrong. It said that the AEA’s analysis didn’t account for those who had lived ‘for many years’ in an acquired role and yet had not, for whatever reason, applied for a GRC. It might be reasonable to include such a person notwithstanding that they were legally male, while it might be equally reasonable to exclude someone with a GRC who was legally female.
At this stage the parties’ arguments essentially converged. Both parties were arguing that a GRC was not relevant to the provision of a single sex service.
Whether Appearance is a factor
The court examined the situation where a person using a woman only service is “visually indistinguishable” from a woman and what this means in law.
This phrase’s provenance is from a case which predates the Gender Recognition Act (“GRA”), A v CC West Yorks. It was about a transsexual MTF police officer who argued that she had suffered discrimination because she was refused employment, as she would not able to search female prisoners. [For the avoidance of doubt, the court held that Ms A “appeared in every respect to be a woman” – this is not a case in which Ms A asserted a gender identity at odds with appearance which would, nevertheless, today bring her within the scope of the Equality Act. The case was brought because a prohibition on conducting searches would alert her colleagues to her trans status, which was not known to them. There is absolutely no suggestion that she was seeking inappropriate contact with female prisoners. ]
The House of Lords held that sex could include “the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.” This was all decided under the provisio that the GRA would consider and address the issue of legal sex.
Times have changed. The GRA is now in force. We no longer assume that gender reassignment means “a post-operative transsexual” and we now understand intimate searches to be something to which a person consents, not to which they object – albeit lack of consent may be no obstacle where the relevant PACE requirements are satisfied.
However personal appearance is a factor which both parties acknowledged as relevant when providing a single sex service and applying the exceptions. In a situation satisfactory to nobody, personal appearance is relevant when assessing whether excluding a transwoman from a woman only service is a proportionate means of achieving a legitimate aim.
The Judge decided that AEA’s question about the lawfulness of the EHRC’s guidance should not be put in front of the courts. His job was not to decide what the correct interpretation of the law was at this stage. All he had to do was decide if AEA’s claim was “arguable” – that is, was it arguable that the EHRC’s guidance was so wrong as to be unlawful.
He decided it was not, for the following reasons:
- On the first argument, he agreed that the COP said “should,” not “must.” He pointed out that the guidance extends to just four paragraphs and is intended to be a brief summary not a detailed legal analysis. After “should” comes the disclaimer “However,” followed by an explanation of where exclusion will be reasonable. Although it is not detailed, it is not intended to be an exhaustive guide.
- He also agreed that if there are public bodies which have understood a ‘should’ as a ‘must,’ these are capable of challenge by individual service users to individual service providers, whether inclusive or exclusive. We look at this below.
- On the second argument, he agreed with the EHRC that even if a service has met the first requirement by showing it needs to be a single or separate sex service in order to exclude men, nevertheless, it must also meet the second requirement to exclude transwomen where necessary.
- It may well be that a service needs to be female only, but the variation in presentations of transwomen from someone who is ‘visually indistinguishable’ to someone who has only just announced an intention to transition, and the variation in needs of the service users from a rape crisis centre to a changing room with partitioned cubicles, mean that there cannot be the certainty advanced by the Claimant.
- In respect of the third argument, the judge agreed that physical appearance is relevant. This is unfortunate. Someone who is genuinely visually indistinguishable will be unlikely to cause challenge or consternation on accessing a SSS, even if they should choose to do so. Focus on a person’s physical appearance is likely to be experienced as demeaning by both the subject and the person required to make the assessment.
THE EHRC’s Stance on Single Sex Services
It would have been significant if the EHRC had been forced to change its guidance, but the refusal of permission means that the existing situation continues – but with the welcome clarity that the EHRC has acknowledged that there are instances where refusing access to a person of the opposite sex is perfectly reasonable and not phobic.
The EHRC made two important concessions:
- It distanced itself from prescriptive public guidance that those who self identify as such “must” be treated as women,
- It made clear that in its view that a women only service is permissible and the correct approach is more nuanced with a starting point of inclusion but recognising that exclusion can be justified (due to being a ‘proportionate means of achieving a legitimate aim’).
What does all this mean?
EHRC agrees that women only space does not have to include anyone who is male at birth, and described prescriptive inclusion policies along the lines of self-ID as “directly inconsistent” with the Code of Practice.
And where should these cases be brought?
The judge strongly agreed with the EHRC that a better challenge would have been brought by an individual service user against an individual service provider, rather than in the abstract at the level of the EHRC and the AEA.
Whilst a reasonable view in law, this is a sad outcome for both trans and feminist service users and for service providers engaging with SSS policies. Women’s services such as crisis centres, refuges and support groups are overstretched and ill positioned to sustain lengthy legal battles.
Some of the Misleading Public Guidance
The policies which AEA had pointed to as containing misleading guidance included
- SIA’s “Trans Customers: A Guide for Door Supervisors;”
- ACAS, “Gender reassignment discrimination: key points for the workplace”;
- the Metropolitan Police’s Trans Policy;
- Cambridgeshire and Peterborough NHS Foundation Trust, “Transgender guidance for Trust staff and service users;”
- Aviva, “Transitioning at Work Employee Guidelines;”
- Hr024, “Transgender Employees Experiences and a Guide for Employers;
- Swim England, “Guide to engaging trans people in swimming”
- Citizens Advice, “Single-sex and separate services for men and women” (NB the February 2021 version is accurate)
- The Law Society, “Transition and change to gender expression template” (NB this DOES reference EHRC, although was dated November 2020 so this version may postdate the litigation)
- YHA, “Transgender Guest Equality Policy (2019)”
- Stonewall, “An Introduction To Supporting LGBT Children And Young People: A guide for schools, colleges and settings”
- Stonewall, “Delivering LGBT-Inclusive Higher Education”
- GIRES “Equality and Diversity Transgender Policy Guide for Employers 2015”
- GI, “Trans Inclusive Residentials, A Free Resource for Youth Workers, Schools and Organisations”
- GEO and GI, “Providing services for transgender customers. A guide”
all of which envisage that a person must, in some cases from the moment they announce an intention to transition, be allowed to use shared private facilities of their preferred sex. In many of these policies there is no hint that the authors were aware that exclusion may be justified where it is a proportionate means of achieving a legitimate aim.
EHRC said that there was no evidence that the authors of such policies had been led or misled by EHRC, and that the COP provided adequate guidance explaining that exclusion could be justified.
Here is what EHRC said in its skeleton argument about these documents:
“… insofar as the AEA’s primary objection is to guidance suggesting trans-persons must be allowed to access the SSS of their acquired gender, that is directly inconsistent with the COP. As set out below, the COP makes clear, in terms, that trans-persons can be excluded from a service where that is justified, and, indeed, the EHRC has taken steps to bring that to the attention of service-providers whose guidance erroneously suggests trans-persons must always be permitted to use the SSS of their acquired gender irrespective of the needs of, or detriment to, others. A striking feature of the present litigation is that, if the AEA or others affected have identified guidance or practices of other public or private bodies’ that does, in fact, reflect incorrect statements of law, it is not clear why they are not being pursued. Instead, a claim has been brought in relation to the EHRC’s COP which simply does not contain the alleged errors.” [emphasis added]
It might be considered remarkable that quite so many bodies have apparently developed policies without regard to EHRC’s express intervention and also its statutory Code of Practice, but there we have it. Policies and guidance which say a person must be allowed to access the SSS of their acquired gender without reference to possible exceptions is “directly inconsistent” with the COP, and the EHRC will correct service providers whose guidance is “erroneous” in that respect.
What happens next?
Everyone who provides a single or separate sex service should ensure that they have good legal insurance. It seems likely that as a result of this litigation, women will take action against the individual service providers whose guidance is erroneous, and that more trans people will take action against SSS when they feel that they have been wrongly excluded. As these cases progress up from the county courts to the High Court and Court of Appeal, general principles will be developed through case law as to what a ‘proportionate means of achieving a legitimate aim’ looks like in practice.
Organisations offering a SSS also need a policy on how, and when, they will apply the exceptions. It will not be enough simply to say “this service is female only.” The policy must set out why the SSS is justified at all and then must say that admission of transwomen is or is not likely to be justified. A blanket ban is likely to be unlawful: the rather far-fetched example was given of a transwoman with her children approaching an otherwise empty women’s refuge in the middle of the night. The policy must envisage the improbable as well as the routine.
Finally, we need more research. Many women avoid mixed space and we hypothesise they will simply self-exclude quietly, leading service providers to become complacent about the need for single sex services. “Our service is unisex,” they say “and we see no women here who have a problem with it, therefore it is unproblematic.” Women who have stopped using a service because it became mixed, or who avoid coffee shops with unisex loos, need to make this known. Service providers need good research to rely on when deciding whether a SSS is justified in order to meet women’s needs. If the service already has an inclusive or conversely an exclusive policy it will not be enough to simply consult with existing service users – it will be necessary to identify potential users too because the policy will have defined the existing service user group.