The Equality and Human Rights Commission (EHRC) has published new transgender guidance seeking to clarify whether and how transgender people can be excluded from single-sex services. Exclusion can be legitimate where reasons are “justifiable and proportionate”. Justification could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety. This applies for individuals holding gender recognition certificates as well, as long as it is a “proportionate means of achieving a legitimate aim”.
Predictably, the transgender guidance has sparked a heated debate. Gender critical feminists like Maya Forstater lauded the guidance for recognising that ‘everyone’s rights need to be balanced’ and providing ‘examples of how trans people can be included without undermining other people’s dignity and privacy’. On the other hand, LGBTQ+ organisation Stonewall suggested the guidance went out of its way to justify the exclusion of trans women.
Stepping back from the Twitter flame wars, though, it is helpful to consider the EHRC transgender guidance in the context of existing law.
The Equality Act defines sex in binary terms: men and women are defined as biological males and females, respectively. A trans person is someone who 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’. The concept of gender reassignment is also based on a binary view of sex, and does not protect people who identify outside these two categories (e.g. non-binary individuals).
Single sex services will be directly discriminatory against the excluded sex, but this is permitted in pursuit of a legitimate aim where the means of achieving it is proportionate. Take a women’s shelter, for example. A legitimate aim in excluding men could be protecting female users – many or all of whom may be vulnerable – from trauma or distress. The impact on men of being excluded must also be considered and balanced. Do they still have access to alternative services? Is there a less exclusionary approach available, such as devoting a walled-off part of the shelter to men?
A trans woman without a gender recognition certificate (GRC) is legally male, and so will generally be excluded from a women’s single sex service. But there may be circumstances where a rule excluding a trans woman without a GRC from a women’s single sex service will be indirectly discriminatory. Where this is the case, exclusion would be discriminatory unless it is a proportionate means of pursuing a legitimate aim.
Trans women with GRCs are treated as women, but can be excluded from certain women’s single sex services where to do so is a proportionate means of pursuing a legitimate aim. The specific impact on trans women would need to be considered – for instance suggestions around ‘passing’, or whether they can realistically access an alternative service with dignity.
On the other hand, the fact that women are not homogenous would also need to be considered. Many women will be relaxed about sharing spaces with trans women, but others might have a history of sexual abuse from men, or be from religious groups where any mixing among the sexes – particularly in intimate settings – is not permitted. Such women may effectively be barred from accessing single sex services if trans women are permitted access. Excluding trans women from women’s refuges, sexual trauma services or communal changing rooms, etc. is likely to be generally lawful – but in each individual case the impact on women and trans women must be delicately considered.
Ultimately then, the EHRC transgender guidance should hardly be controversial. It is merely a restatement of existing law, balancing the legitimate interests of both biological and transgender women in accessing services safely and with dignity and respect. Issues around gender identity are delicate and emotionally fraught – there will inevitably be instances where even the best intentions cannot satisfy everyone. That is why it is so important that the EHRC guidance avoids blanket rules, and provides the flexibility to consider every situation in its own individual context, remembering the sometimes competing protected characteristics. After all, that is how the Employment Tribunals will consider matters brought before them.
This blog was written by Kendal Youngblood, Solicitor at didlaw.
