With the daily firehose of transphobia in the UK, it is hard to believe that it is only three months ago that the Equality and Human Rights Commission (EHRC) published its guidance on Single and Separate Sex Services (SSS). We were outraged that the EHRC, responsible for enforcing the Equality Act 2010 (‘EA 2010’), had published transphobic guidance that could actively encourage organisations to break equalities law. In April, we wrote a letter to the EHRC signed by thirty-nine legal and associated professionals plus academics and others active in the field to express our serious concerns. After an extended delay (during which time we were told that they were receiving ‘legal advice’), we have now received their reply. It is here and this blog will make the most sense if you read it first. In summary, the EHRC has not challenged our legal assertions or citations but instead, it claims that the guidance is consistent with them.
Legal principles
In particular, the EHRC has not disputed the following legal principles or their citations:
Service providers are under no legal obligation to use the EA 2010 sched. 3 para. 28 exception (FDJ v Secretary of State for Justice [2021] EWHC 1746 para. 88)
Blanket bans against trans women are not lawful (Croft v Royal Mail [2003] EWCA Civ 1045 para. 53, “Services, public functions and associations Statutory Code of Practice” (‘Services Code’) para. 13.60)
Should a service provider wish to make use of the EA 2010 sched. 3 para. 28 exception to discriminate against a trans person, then a case-by-case approach must be taken (Services Code para. 13.60)
The ERHC’s view of the guidance
The EHRC claims, bafflingly to us, that the non-statutory guidance it recently issued is consistent with both the legal principles above and also the Services Code.
The EHRC, in its reply, also “strongly disagree[s]” with our statement that the ‘Guidance implies that the impact on cisgender people of trans people’s use of single/separate sex services “must be a proportionate means of achieving a legitimate aim”’. However, the guidance includes this incredibly misleading passage:
“If you have met the conditions set out above and have established a separate or single-sex service, you should consider your approach to trans people’s use of the service. In considering your approach and when taking decisions you must meet the conditions set out under the gender reassignment provisions. Under these provisions, your approach must be 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 the privacy and dignity of others. You must then show that your action is a proportionate way to achieve that aim. This requires that you balance the impact upon all service users”
The passage does not make it clear that:
There is no need for a service provider to discriminate against trans people
There is no need for a proportionality test and no need to carry out a balancing exercise if a service provider chooses not to discriminate against trans people.
Proportionality only applies to the discriminatory effect on trans people on any restrictions on their usage of the service.
The reader of the passage is left believing incorrectly that the impact of the approach on both transgender and cisgender people needs to be proportional[1].
The EHRC claims that the guidance “does not promote a blanket ban on trans-users”. However, immediately after the section of the guidance we quoted above, there are six examples. Four of the examples feature the spectre that trans women service users might share a SSS service with cisgender women service users and in all four cases, from group counselling to exercise classes, from domestic abuse refuges to toilets, the guidance suggests a blanket ban of trans women:
“A group counselling session is provided for female victims of sexual assault. The organisers do not allow trans women to attend …”
“A domestic abuse refuge offers emergency accommodation to female survivors … The provider decides to exclude trans women ….”
“A leisure centre introduces some female only fitness classes. It decides to exclude trans women …”
“A community centre has separate male and female toilets. It conducts a survey in which some service users say that 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 … It puts up signs telling all users that they may use either the toilet for their biological sex or to use the gender neutral toilet if they feel more comfortable doing so.”
The EHRC states that they disagree that the community centre example “is problematic or that it suggests a blanket ban against trans-users. It is instead simply an example of the ways a [service provider] could resolve a dispute about who should use which toilets.”
The example shows how a community centre could resolve a dispute about toilets by imposing a blanket ban on trans people using the toilet that matches their acquired gender. However, the justification for the policy is nonsensical and the policy contravenes the legal principle espoused in Croft. Far from being an example of good practice, it is a perfect example of how a community centre could put itself at risk of legal action.
One of the purported reasons for the proposed discrimination against trans people is for reasons of privacy and dignity. The policy seems to be built on the false stereotype that trans people are easily recognised. However, some trans women look identical to cisgender women and many trans men are indistinguishable from cisgender men. Indeed, cisgender men, seeing other (in fact trans) men using the women’s facilities could be misled and accidentally enter the women’s facilities themselves. As a result, if the policy was followed (although it is not clear how it could be enforced) then there would be men in the women’s toilet and women in the men’s toilet. Cisgender women would be shocked to see perhaps bearded and/or muscular men sharing their toilet. Cisgender men are likely to be intensely uncomfortable using urinals in front of women. Therefore, the privacy and dignity issues such a policy would cause, rather than being a justification for the policy, are sufficient in themselves for it to be unlawful. Further, the policy is contrary to the legal principles established in Croft.
In Croft, an employment case under the Sex Discrimination Act 1975[2], Sarah Croft was a trans woman who began to transition from male to female whilst she worked at the Royal Mail. After 7 months, her employer still prevented her from using the female toilet and required her to use the disabled toilet (which was gender-neutral). Her employer noted that female employees would often get changed in the wash basin area of the female toilets (para. 5) and also that a number of female employees from minority ethnic backgrounds had specific objects to sharing facilities with Sarah, whom they had known when she was presenting as a man (para. 15).
The Court found that for a period the employer was entitled to make alternative arrangements for a transgender employee provided she was treated with dignity and respect (para. 51) but there will come a point (para. 53) decided on a case-by-case basis where a transgender person becomes entitled to use the toilet that matches their acquired gender. This point cannot be determined by the views of other employees (para. 47) and does not require the transgender employee to have had final surgery (para. 46).
Thus, the key legal principle in Croft is that, provided a trans person makes sufficient progress in their transition, then they become entitled to use the toilet that matches their acquired gender and offering just a gender-neutral toilet becomes unlawful discrimination, regardless of either the views or cultural background of other service users. Applying the Croft principles in the context of discrimination in the services provided to the public, then once a trans person has made sufficient progress in their transition it is no longer proportionate to discriminate against them regarding access to toilets. This is completely contrary to the example given in the EHRC guidance.
It is also not possible to operate the policy in the community centre example on a case-by-case basis. Some trans people, who meet the test in Croft, will take the signs regarding usage of toilets at face value and suffer unlawful discrimination. If the gender-neutral toilet is in use, then they may also be forced to very publicly “out” themselves by using the toilet that matches their birth gender. Others, who would like a dispensation, will need to disclose sensitive, confidential (and if they have a GRC, legally protected) information to the community centre staff to be able to use the appropriate toilet.
Cisgender users of the toilets will of course not be aware of which trans people have been given a dispensation from the policy. Cisgender people would therefore be likely to challenge any user of the women’s toilets who looked ‘sufficiently trans’: including trans men and butch lesbians using the toilets in accordance with the policy and (so-called) ‘non-passing’ trans women using the toilets in accordance with a dispensation.
There cannot be any factual scenario linked to the community centre example where such a policy would be lawful.
Concluding thoughts
As there are no circumstances in which the community centre example correctly reflects the law, then following Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 we believe that the courts do have the jurisdiction to correct this error of law upon application for judicial review.
We also struggle to understand how producing this guidance is consistent with the EHRCs statutory duties under the Equality Act 2006 which include:
Encouraging good practice in relation to equality and diversity - s. 8(1)(a)
Promote awareness and understanding of rights under the EA 2010 - s. 8(1)(d)
Work towards eliminating unlawful discrimination s. 8(1)(f)
Encouraging the development of a society in which people’s ability to achieve their potential is not limited by prejudice (s. 3(a)), in which people have an equal opportunity to participate (s. 3(d)) and in which there is respect for the dignity and worth of each individual (s. 3(b))
The guidance from the EHRC, the body with a statutory obligation to protect equal and human rights for trans people, is sadly another high-water mark of institutional transphobia in the UK. Unfortunately, with the current political climate engendering a feeding frenzy of anti-trans rhetoric in Conservative Party spaces, it’s unlikely to be the last. In the meantime, we'd like to thank again all those who signed this letter alongside us in a collective attempt to make the EHRC acknowledge the pain and damage it is causing to a belleagured minority that is being more and more used as a political and cultural punch-bag.
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[1] For example, a service provider may allow all trans people to use the toilets that match their lived gender. A cisgender person could complain that this approach is not proportional as it does not take into account her distress at having to share the toilets with a trans person. However, as she is not suffering discrimination there is no need to consider if the impact on her is proportional. On the other hand, if the service provider decides to impose restrictions on trans people use of the toilet then these restrictions must be proportional. For example, rather than a blanket ban, the service provider might require trans people at the start of their transition to use a gender-neutral toilet instead. The reason why there is a requirement for proportionality is that trans people are being discriminated against.
[2] Care therefore needs to be taken in transposing these legal principles to discrimination in the provision of services to the public under the EA 2010. We have skipped a long technical discussion regarding why they apply, but as can be seen from the EHRC’s Services Code, the Croft legal principles do apply in the case of services discrimination under the EA 2010.