EHRC Guidance Published for Providers of Single Sex Services

On 4 April 2022, the Equality and Human Rights Commission (EHRC) published a practical guide to help service providers to make lawful decisions about any services they offer to women and men separately by explaining the legal justifications for sex and gender reassignment exceptions in the Equality Act 2010.

What does the guidance say?

The guidance confirms that service providers wishing to limit services to a single sex are legally able to do so, provided the reasons are justified and a proportionate means of achieving a legitimate aim. This will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. For example, a legitimate aim could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety. This justification also applies to legitimately excluding trans individuals from single sex services, including those who hold Gender Recognition Certificates (GRC - a legal document that allows someone to change the legal sex on their birth certificate.).  It must then be shown that the actions taken by the service provider is a proportionate way of achieving the legitimate aim by balancing the impact on all service users.Furthermore, the guidance advises organisations such as hospitals, retailers, hospitality and sports clubs to put in place policies that are both legal and balance the needs of different groups. It recognises that there are circumstances where a lawfully established separate or single sex provider can exclude, modify or limit access their service for trans people. The guidance provides various examples of single sex service and legitimate justifications for limiting services to a particular sex. Some examples include:

• wards in hospitals and nursing homes where “users need special care, supervision or attention”;
• separate male and female changing rooms where “a woman might reasonably object to the presence of a man”;
• a person reasonably objects to the service user being of the opposite sex because the service involves physical contact;
• group counselling sessions for female sexual assault victims where it is believed the victims are “likely to be traumatised by the presence of a person who is biologically male”;
• trans women could also be excluded from a domestic abuse refuge offering emergency accommodation if residents “feel uncomfortable sharing accommodation ... for reasons of trauma and safety”. It is suggested that the provider should compile a list of alternative sources of support;
• a community centre with male and female toilets whose users say they “would not use the centre if the toilets were open to members of the opposite biological sex, for reasons of privacy and dignity or because of their religious belief”

Therefore, according to the guidance separate or single sex service providers should consider their approach to trans people's use of the service, particularly the nature of the service and the reason a separate or single sex service is needed and ensure that they can show that their actions are proportionate means of achieving a legitimate aim. Some service providers may find it helpful to have a policy for how services are provided to trans people. Where this is the case, the guidance recommends that the services develop a policy but this is not a legal requirement. If services have an existing policy, they should be prepared to consider whether particular circumstances justify departing from the general policy in specific cases. It is recommended that services record their reasons why they have taken the decision to provide a separate or single sex service, along with any supporting evidence to support their rationale for decision-making.

Has the law changed?

No.  The law remains the same.  The new guidance is only an interpretation of existing equality laws, and it confirms that service providers wishing to limit services to a single sex are legally able to do so provided the reasons are justified and proportionate.  It is the first time the EHRC has published guidance with specific examples related to the circumstances where access for trans people to single sex spaces can be modified or limited in England, Scotland and Wales.It should be recognised that the guidance has already been criticised in some quarters as potentially causing more confusion (rather than clarity) and leading to more unlawful practices if the examples given are followed without consideration of the particular circumstances.This therefore remains a complex and controversial area of law.

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