AEA v EHRC, Proportionality, and Single-Sex Services

Continuing a Civil Disagreement

Last week Naomi Cunningham and I sat down to discuss sex discrimination, gender critical belief, and the Equality Act 2010. It was a fantastic chat and I thoroughly recommend checking it out.

During our conversation, we spoke about AEA v EHRC, a case addressing guidance relating to the provision of single-sex services. AEA was not granted permission to take the case to a full hearing on technical - but important - grounds relating to the legal difference between “should” and “must”. You can read a great explainer for AEA v EHRC here.

More pertinent for this post, we disagreed about whether the Single-sex exceptions set out in the Equality Act contain a one proportionality that covers both establishment and operation of a service or two proportionality tests where establishment must be proportionate and operation must also be proportionate.

This morning, we continued that debate in the comments on the podcast page. Because that is where we continued this debate, it isn’t publicly available. I think this is an important disagreement so I want to replicate it here for anyone interested to see.

The debate started with a question from Jenny Smith picking up on an example I used in the podcast of a provider of women-only showers and changing rooms being confronted by a truly exceptional case of a man turning up with acid covering himself and his son. He requests to use the shower and is denied on the grounds that these showers are for women only. I suggested that in this case, it would be wholly disproportionate to refuse to allow the man and his son use of the showers and that they could temporarily be cordoned off from female users to prevent any invasion of privacy.

The question we have to address is whether refusing to allow the man and his son to use the shower would be covered under Schedule 3 such that the sex discrimination is immune from liability or whether the disproportionate nature of this exclusion would mean that it was not covered under the exemption.

Here is the conversation that followed:

Jenny Smith: The muddy man and the showers is effectively the argument used in AEA - from memory the example was a man who identifies as a transwoman arriving at an *empty* women's domestic violence shelter, with his children, in the middle of the night after suffering domestic violence; and that it would be unreasonable to turn him away.

I did not understand at the time (and still don't) why his identification was important in this; you would surely assume that such a shelter - given that it's empty at present (we wish!) - would assist *any* man that arrived with his children in those circumstances.

Michael Foran: Yes I can’t see how identity would make a difference here. The point I’d make is that in this exceptional example it would be disproportionate to turn someone away on the basis of sex and that this would matter for the availability of the Schedule 3 exception if someone sued for sex discrimination.

Naomi Cunningham: 1. In general, service providers can define their users as they choose. So you can have a health club for gingers if you like, or left-handers, or Old Etonians, or people who can afford to pay an eye-watering subscription, etc. (And come to that, in general the shower in my house isn't made available to random passers-by.)

2. But the EqA says you're not allowed to discriminate on grounds of various protected characteristics.

3. But again - the EqA says in some specified circumstances you are allowed to discriminate on grounds of protected characteristics; and specifically, ¶¶26 and 27 of schedule 3 provide for single-sex and separate-sex services.

Absent the EqA, turning men away from the women-only club wouldn't be unlawful. The EqA makes it unlawful to discriminate on grounds of sex; but by ¶26 and 27, sometimes that doesn't apply. (I think it's important to notice that where it doesn't apply, it just doesn't apply. It's not that ¶¶26 and 27 provide a grudging, precarious permission to do something a bit dodgy. They just say it's not unlawful sex discrimination to run a single-sex service if the conditions are met. End of.)

So where we are with the legitimate women-only service is that the EqA prohibition on discrimination doesn't apply. That puts the women-only club on all fours with the Old Etonians club, the gingers' club, the expensive club, the left-handers' club, and the shower in my bedroom. Not available to people who don't qualify, and lawfully so. Those situations are all materially the same, so far as the EqA is concerned: they are all forms of discrimination with which the EqA doesn't concern itself: in 5 cases because there's no relevant protected characteristic in play, and in one because the kind of discrimination in question is expressly permitted by ¶26 or 27.

Now, let's think about your muddy man - or male victim of an acid attack - against that background. He's not entitled to use the shower at the Old Etonians club because he's not an Old Etonian; not at the gingers' club because he's blond; not at the very expensive club because he can't afford the fees; not at the left-handers' club because he's right-handed; not at the women's club because he's male; and not in my house because he's not my guest.

If he presents himself at any of these places needing an urgent wash, I'll readily agree that it's wrong to turn him away. It's not wrong because it's sex discrimination in the case of the women-only club any more than it's wrong because it's anti-blond discrimination in the case of the gingers' club: it's wrong because he's in urgent need, and it's inhumane.

I don't know whether that form of wrongness is something the law concerns itself with: I don't know what if any obligations the law imposes on bystanders to lend assistance in an emergency. But I do feel very confident that whether or not there is such an obligation can't possibly depend on whether or not the refusal to assist is founded on the fact that the service is a single-sex service made lawful under an exception to the prohibition of discrimination in services and public functions at s.29 EqA. That would make no sense at all.

Michael Foran: Yes the core of our disagreement is whether the requirement that the limited service be a proportionate means of achieving a legitimate aim speaks only to establishment conditions or to the sex discrimination itself.

One view is that once the aim of the service is one approved in subparagraphs (2) - (7) then the question is just whether having a single sex service for one of those aims is proportionate. If it is then all sex discrimination carried out to in the operation of the service, even very disproportionate discrimination, is covered and would be lawful. The issue I have there is that it would mean that it is in fact very difficult to meet these establishment conditions because the requirement for proportionality would need to be to establishing the proportionality of a blanket rule applicable even in these exceptional cases such as the acid attack. Blanket rules can of course be proportionate - the fact that they are blanket won't automatically mean that they are disproportionate - but the application of such rules may be disproportionate if there is no room for exception at all. If you need to show that proportionality means proportionality in all circumstances, that would make it much harder to establish single-sex services because establishment would only be proportionate if every instance of sex diserimianiton in the operation of the service was proportionate. By fusing both of those conditions together, such that if you meet them in establishment, you are automatically covered in all application, you then make it much harder to meet them in establishment in my view.

The alternative view is that it's relatively easy to meet the establishment conditions but that meeting them does not mean that it is always permissible to engage in sex discrimination in the operation of the service. This will mean that when considering whether the establishment conditions have been met (aim being one contained in subparts (2)-(7) and limited provision is proportionate), the limited provision is taken in general terms not absolute terms. If, in general it would be proportionate to exclude males from a female changing room, you need not look at whether it would be proportionate to exclude them in the exceptional case where the child turns up covered in acid. That is a second question that would need to be addressed and if it is disproportionate to exclude in that context, that tells us nothing about whether it would be disproportionate to establish the female-only changing room.

So Naomi and I agree that general policies are proportionate, that it is proportionate to exclude males from female only services, that identity claims do not tip that into being disproportionate, but we disagree on whether the acid example is one that would amount to unlawful sex discrimination if the child was turned away.

Naomi Cunningham: The requirement at ¶27(1)(b) is just that "the limited provision is a proportionate means of achieving a legitimate aim". There's no requirement in the statutory words that each individual refusal to admit must be a proportionate means of achieving a legitimate aim, nor any suggestion that *sometimes* a specific refusal to admit might be sex discrimination even though in general the single-sex service doesn't contravene s.29. The thing the EqA says doesn't contravene s.29 is "providing a service only to persons of one sex": so the thing that is lawful is "providing the service" in that way — not each individual operation of that policy to exclude someone of the wrong sex.

So if I run a women-only yoga class, having established that lots of women in my area don't feel comfortable doing yoga with men in the room, and that there are not enough men locally who want a yoga class at all to make a separate class viable, that's a lawful women-only service. I advertise it as a women-only yoga class. Women join it on that basis. I'm not in breach of s.29 by running that women-only yoga class, because I'm within ¶27. I'm running a lawful single-sex service, tootling along, everything's fine.

Now a man comes along (let's call him Jim) who for some reason desperately needs to join a yoga class, and only mine is available. But I'm running a single-sex service. We know it's lawful - because we've already established that it fits within ¶27. So I don't let Jim join, because I'm running a lawful single-sex class.

I don't understand by what mechanism under ¶27 the question arises whether it's proportionate to exclude Jim. I'm either running a lawful single-sex yoga class, or I'm not. Jim is a man, so I don't let him join. That's because with Jim in it, it wouldn't be a single-sex class any more.

I don't understand, either, why the proportionality test under ¶27(1)(b) is made appreciably harder by the possible risk of someone like Jim on the horizon (or the acid-attack victim). Proportionality is a fairly broad-brush kind of question that you consider on the basis of the general run of events, not weird unlikely edge cases dreamed up by clever lawyers.

Michael Foran: I wouldn't say that the example of the Yoga class would raise this issue at all because in that example the exclusion of Jim is entirely proportionate. For our disagreement to be made out we would need to consider a case where it would be disproportionate to exclude Jim and then ask whether that would nevertheless be lawful sex discrimination as you contend or unlawful sex discrimination as I contend.

We both agree that these cases will be exceptionally rare and shouldn't have any effect on the ordinary operation of single-sex services. But my view is that in the context of the genuinely disproportionate exclusion by means of sex discrimination, it's not certain that you could rely on the schedule 3 exception.

So our difference is between whether Schedule three permits disproportionate sex discrimination in the provision of single-sex services. It about whether or not the fact that establishing a single-sex service is proportionate means that the proportionality requirement has been met and any subsequent disproportionate sex-discrimination is therefore lawful.

So our disagreement has to be set out with reference to cases where we would agree that the operation or application of a "no men" policy would be disproportionate, even if it is in pursuit of a legitimate aim. That's why I chose the acid victim example because in that case the operation of the changing room on a female-only basis is clearly in pursuit of a legitimate aim but the exclusion of the acid victim is not proportionate.

The question we have to answer is whether the fact that this isn't proportionate means that the provider can now no longer rely on the Schedule 3 exception if he sues for sex discrimination. Your view is that Schedule 3 provides an exception even in this case because the proportionality requirement only relates to the establishment conditions for the service. My view is that Schedule 3 relates to the provision as well as the establishment of a single-sex service and so the fact that sex discrimination would be disproportionate in this case means that the exception cannot be relied upon.

Of course, we both agree that it would be proportionate to exclude males where the human rights of women would be infringed if they were not excluded. I'm just saying that in these other examples where it would be disproportionate, that is a second question that must be answered in addition to the establishment question.

Naomi Cunningham: Perhaps it was unhelpful to hop to the yoga class. Let's stick with the women only something-involving-showers, and the acid attack victim. I wanted to make the example a bit more concrete and believable, but I agree I've made it less useful in the attempt.

So ok, it's a women-only beauty and massage parlour, and it's equipped with showers for clients to use before or after certain treatments. And the exceptional case is a male acid-attack victim. You can make him a child for extra heart-string tuggingness, if you like. Let's call him Vic.

You refer to "cases where we would agree that the operation or application of a "no men" policy would be disproportionate, even if it is in pursuit of a legitimate aim". But I say that that's a misunderstanding of ¶27, which doesn't on its face purport to control individual operations of the policy at all. The thing that has to be proportionate is "providing a service only to persons of one sex". If my beauty parlour can tick that box (plus one of the other ¶27(1)(a) conditions), it's good to go. It's now ticking along as a lawful women-only service, and faced with Vic in his hour of need, I think it's in exactly the same position as the super-expensive health club. It's doing something it's allowed to do, just like the health club. Can that club say "Yes sure, you can use the shower so long as you take out annual membership - that'll be £5,000"? Maybe, maybe not — but the answer isn't going to come from discrimination law.

Your analysis seems to make the beauty parlour guilty of unlawful sex discrimination because it's not proportionate to exclude Vic, and leave the question of the expensive health club's exclusion of him untouched, unless by way of some other duty to lend assistance in an emergency. Do you agree that that's an odd state of affairs? Why should lawful women-only services be under a greater duty in such a situation than anyone else?

Is your reasoning partly driven by an unexamined assumption that discrimination on grounds of sex is a bad thing, and permission to do it must necessarily be precarious? Because if so, I don't agree with the premise: there are many situations in which single-sex spaces and services are not merely permissible, but desirable and necessary (and I think you agree with that).

I have a teasing sense that I should be able to make this more vivid.

I think of the exceptions at schedule 3 as building a wall around certain services and public functions that keeps the EqA out. And once it's out, it's out. This form of discrimination is lawful, because schedule 3 says so. I think your analysis treats the prohibition on sex discrimination as something more like an elastic band, which can be pulled away a bit under schedule 3, just enough to permit certain forms of discrimination. But the underlying prohibition of discrimination is always still there, pulling back, and the permission is precarious. If anything disturbs it, the elastic band will snap back.

Not sure that helps. I'll sleep on it and have another go!

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This was a really illuminating back-and-forth and I think it reveals how complex the law in this area can be. Both sides of this disagreement are compelling in my view.

Naomi has been a truly incredible interlocutor in these debates. She is a walking embodiment of reasonable disagreement, civility, and charm. I doubt our conversation will end here (not least because I’ve not gotten the last word in yet!) but I hope this post has shown that it is possible to have a robust disagreement with someone about this topic without is devolving into name-calling or motive-questioning. The more of debates like this the better!