Response to EHRC Code of Practice consultation

The Equality and Human Rights Commission has released a draft of its updated Code of Practice for consultation. The deadline for responses is the 3rd of January 2025. I’ve written a response in between festive meals and far too much wine with family. My focus has been on how this guidance addressed the interaction between the protected characteristics of sex and gender reassignment.

In this post, I will only include parts of the guidance that I am responding to. For each chapter you are invited to answer two questions. The first asks for suggestions on how to make the guidance more clear. This has a very limited word limit of 250 words per chapter. The second asks if there are any developments in the law that are relevant for the Code of Practice that have not been included. This has a free text box which permits more extensive responses.

Chapter 2: The Protected Characteristics

Gender reassignment

What the Act says

2.35 The Act defines gender reassignment as a protected characteristic (s.7(1)). People who are proposing to undergo, are undergoing or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex have the protected characteristic of gender reassignment.

2.36 For the purposes of this Code, a reference to a trans person is a reference to a person who has the protected characteristic of gender reassignment (s.7(2)).

2.37 The Act uses the term ‘transsexual’ for individuals who have the protected characteristic of gender reassignment. We recognise that some people consider this term outdated, so we have used the term ‘trans’ to refer to a person who has the protected characteristic of gender reassignment. This refers only to persons who fall within the Act’s definition of gender reassignment, it does not include persons who may identify as trans or transgender but are outside of this definition.

2.38 A trans person is protected against gender reassignment discrimination and harassment at any stage in their transition process, from proposing to reassign sex, undergoing a process of reassignment, to having completed it. A trans person does not need to have undergone medical treatment or surgery to be protected. It also does not matter whether a trans person has applied for, or obtained, a Gender Recognition Certificate (GRC), which is the document that confirms the change of a person’s legal sex.

2.42 People with non-binary or gender fluid identities will only be protected if they meet the definition of gender reassignment as set out in the Act. They may also be protected against discrimination by perception.

2.44 A person who presents in a gender non-conforming way, such as ‘cross-dressing’, will be protected where they do so as part of a process of reassigning their sex. The Act does not define what is meant by reassigning sex. It does not have to be a medical process - although some people will take medical or surgical steps - but it is likely to at least involve more permanent changes such as changing one’s pronouns and consistently dressing and presenting as the opposite sex. A person presenting in a gender non-conforming way for some other reason does not have the protected characteristic of gender reassignment.

Sex

What the Act says

2.81 Sex is a protected characteristic and refers to a male or a female of any age. In relation to a group of people it refers to either men and / or boys, or women and / or girls (s.11(a) and (b) and s.212(1)).

2.82 A comparator for the purposes of showing sex discrimination will be a person of the opposite sex. Sex does not include gender reassignment (read paragraphs 2.35 to 2.48) or sexual orientation (read paragraphs 2.84 to 2.88).

2.83 There are specific provisions which apply where the treatment of a woman is because of her pregnancy and maternity, or because she is breastfeeding (read paragraphs 4.53 to 4.72) (s.13(6)(a) and s.13(7)).

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

Stress that a person with the PC of GR still has the PC of sex and can be discriminated against on that basis. Be clear that being protected under GR does not change sex, not even if a process of medical transition has been completed. (Green v Secretary of State for Justice [2013] EWHC 3491, [68]; For Women Scotland v The Scottish Ministers [2023] IHSC 37, [56]). The only mechanism is in the GRA and it is unclear at present whether the GRA applies to the Equality Act.

Provide further guidance for what constitutes "proposing to undergo". There must be a conscious settled decision; a passing whim will not do, but nor is an intention that the change be permanent (AA v NHS England [2023] EWHC 43 (Admin), [131]).

Reference to non-binary or gender fluid identities should mention that, even if not protected under gender reassignment, such individuals will likely be protected under "gender identity belief" (Forstater v CGD Europe [2022] ICR 1, [107]). In order to avoid confusion/misunderstanding, as with gender reassignment, be clear that this does not change sex in law.

Perception based discrimination and s22 GRA should not be mentioned at this point.

More detail is needed for the PC of sex. Be clear that the default position is that sex is biological and this applies to all people, even those with the PC of gender reassignment. There should be an example for the PC of sex which makes it clear that being protected under GR does not change sex.

What changes do you think are relevant that haven’t been included?

This guidance will need to be updated to reflect the Supreme Court decision in For Women Scotland v The Scottish Ministers when it is decided. Notwithstanding that, the protected characteristic of sex has already been clarified in recent years and that development should be included. The protected characteristic of sex defaults to one's natal biological sex (Corbett v Corbett; Bellinger v Bellinger; A v Chief Constable of West Yorkshire Police; upheld and affirmed in Forstater v CGD Europe as the default position in common law at [32].

This has been applied to the specific context of gender reassignment as well, with courts clarifying that, without a GRC, being protected under gender reassignment does not change sex in law (Green v Secretary of State for Justice [2013] EWHC 3491, [68]; For Women Scotland v The Scottish Ministers [2023] IHSC 37, [56]). Both of these clarifications/developments in the caselaw should be reflected in this guidance.

This is a source of considerable confusion and misunderstanding and this guidance should be clear about the law as it relates to the PC of sex and its relationship with gender reassignment. Regardless of the outcome of FWS2, there have been developments and clarification in the caselaw interpreting the PC of sex and Gender Reassignment that this draft of the guidance does not reflect and which is vital for duty-bearers to understand their legal obligations and entitlements.

Chapter 3: Obligations relating to services, public functions and associations?

3.41 Service providers, those exercising public functions, and associations would be considered to have taken all reasonable steps if there were no further steps that they could have been expected to take. In deciding whether a step is reasonable, service providers, those exercising public functions or associations should consider its likely effect and whether an alternative step could be more effective. Even if the steps taken do not prevent discrimination, harassment or victimisation from occurring in practice, an employer may still avoid liability if they can show that the steps taken met the ‘all reasonable steps’ threshold.

Example

3.42 A shop owner becomes aware that her employee is refusing to serve a trans customer. The employer instructs the employee to treat trans customers in the same way as other customers and advises the employee that discrimination is a disciplinary offence. However, the employee continues to treat trans customers less favourably. Another trans customer brings a claim against both the employee and the employer. The employer may avoid liability if they can show that they took all reasonable steps to stop the employee from acting in a discriminatory way. Paragraphs 3.48 to 3.52 list some steps which, depending on all the circumstances, may be considered reasonable. Questions that may arise in this context will include what steps the employer took to monitor the effectiveness of its action and to take disciplinary action in relation to any further incidents.

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

The example at 3.42 is imprecise and unclear. The claim that trans customers are treated less favourably should be explained in more detail. It should be made clear who the comparator is here so that it is clear what less favourable treatment looks like in this context. To avoid confusion and the need to rewrite this guidance depending on the outcome of For Women Scotland v The Scottish Ministers, the example should not mention GRC status. In that context, the less favourable treatment must be as compared to another person of the same biological sex; "other customers" is not the relevant comparator here and does not properly explain the applicable legal rights and responsibilities in this example. This is particularly important when using an example involving a trans customer as there may be lawful exceptions to the norm of equal treatment, depending on whether the retail context involves provision of a single or separate sex service. If that is the case, treating the trans customer less favourably for the purposes of understanding the legal rights and responsibilities will require comparison of how that customer has been treated in comparison to another customer of the same sex. Understanding the legal rights and responsibilities here requires clarity on the correct comparator.

Chapter 4 Direct Discrimination

From this point on, my responses pertain to several paragraphs in the draft Code in each chapter, so I will replicate the relevant sections alongside my response.

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

4.4 To decide whether service providers, those exercising public functions or associations have treated an individual ‘less favourably’, a comparison must be made with how they have treated other individuals or would have treated other individuals in similar circumstances (a comparator can be hypothetical). If the treatment puts the individual at a disadvantage compared with other individuals, then it is likely that the treatment will be less favourable: for example, where a customer is refused service or a person’s membership of a club is terminated. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity. If the quality of the service being offered or the manner in which it is offered is comparatively poor, this could also amount to less favourable treatment (s.31(7)).

The explanation of less favourable treatment should be clear that "other individuals" are those who are in a similar situation but do not have the protected characteristic the complainant has/is perceived to have. While a comparator test is not always necessary, the "reason why" test is still testing for less favourable treatment not unfavourable treatment and that means that whichever test is used, the treatment complained off must treat the complainant less favourably than others who do not share that PC.

4.15 If the protected characteristic is sex, separating men and women service users may be permitted in certain circumstances (read about exceptions for competitive sport, communal facilities and separate services in Chapter 13).

4.15: Provide examples of single/separate sex services to make it clear these exceptions apply to ordinary everyday services such as toilets/changing rooms.

Example:

4.25 A lesbian couple is seated at a restaurant waiting for a member of staff to take their order. They observe the staff serving other couples who arrived after they did. In this case it will be necessary to look at why the restaurant staff did not serve the same-sex couple to determine whether their less favourable treatment was because of sexual orientation.

4.25: The example should make clear that the observation is that opposite sex couples who arrive later are being served first. If some or all of the other couples are same-sex, it won’t be sexual orientation discrimination.

Example

4.27 An amateur dramatics association that organises theatre trips for its members turns down an application for membership from a woman with a hearing impairment as they believe she would not get the same benefits as other members. Although the association may be well-intentioned in rejecting her membership application, this is likely to amount to direct disability discrimination.

4.27: Suggested example "a doctor does not offer a female trans patient a cervical smear test because that patient identifies as a man and the doctor doesn’t wish to offend. This is gender reassignment discrimination: the doctor is treating the trans patient less favourably than other female patients on the basis of gender reassignment, even though the motive is benign"

The comparator examples should include gender reassignment. This is where there is most confusion over comparators and there is established caselaw making it clear that the comparator is someone of the same sex, not the same gender identity. An example here is essential to explain the legal rights and responsibilities.

What changes do you think are relevant that haven’t been included?

4.53 The Act provides protection against discrimination because of pregnancy and maternity in the provision of services, the exercise of public functions and in associations (s.17).

4.54 When explaining these provisions we use the same language as the Act, which refers to discrimination against women on the grounds of pregnancy and maternity.

It is possible that a trans man whose legal sex is male - having obtained a Gender Recognition Certificate (GRC) - could also experience pregnancy and maternity. The courts have ruled that motherhood is defined as having been pregnant and given birth, regardless of whether the person in question is defined as a man or a woman in law [footnote 25].

A trans man who becomes pregnant is likely to be protected under the protected characteristic of pregnancy and maternity [footnote 26].

The discussion on trans men who are pregnant does not reflect the law. It should be made clear that trans men who do not have GRCs are protected from pregnancy discrimination because, under the Equality Act, they are women. That is an accurate reflection of the current law and failure to make that clear means that this guidance suffers in terms of clarity and explanation. The Act does not protect "motherhood"; it protects women who are pregnant or who have given birth. It may be acceptable to gloss statutory language when not much turns on a change from "transsexual" to "trans", but developments in the law that clarify the relevant comparators for sex and gender reassignment discrimination need to be reflected in this guidance, even if it might cause hurt or offence to some.

Chapter 5 Indirect Discrimination

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

5.46 If the person applying the provision, criterion or practice can show that it is ‘a proportionate means of achieving a legitimate aim’, then it will not amount to indirect discrimination (s.19(2)(d)). This is often known as the ‘objective justification’ test. The test applies to ‘same disadvantage’ indirect discrimination also (read paragraphs 5.59 to 5.61) and to other areas of discrimination law, for example, discrimination arising from disability.

5.47 If challenged in the courts, it is for the service provider, person exercising a public function or association to justify the provision, criterion or practice and to produce evidence to support their assertion that it is justified. Generalisations will not be sufficient to provide justification. It is not necessary for the justification to have been fully set out at the time the provision, criterion or practice was applied. If challenged, the service provider, person exercising a public function or association can set out the justification to the court.

5.53 Proportionality requires a balancing exercise between the aim sought to be achieved and the discriminatory effect it may have. The disadvantages caused must not be disproportionate to the aims pursued.

The courts have broken this down into a four stage test. For a measure to be proportionate [footnote 41]:

1. The aim must be sufficiently important to justify limiting a fundamental right.

2. The measure must be rationally connected to the aim being pursued. This means its implementation can reasonably be expected to contribute towards the achievement of that aim [footnote 42].

3. The means chosen must be no more than necessary to accomplish the aim. The court will consider whether a less intrusive measure could have been used without unacceptably compromising the achievement of the aim.

4. The impact of the rights infringement must be proportionate to the likely benefit of the measure.

Use more examples of what would be lawful. Too many examples say what duty-bearers should not do.

This is of particular concern when discussing the proportionality test. Make it clear that general policies can and often are lawful and proportionate. The sentence "Generalisations will not be sufficient to provide justification" should be reworded or removed. It creates the impression that general policies cannot be justified, and this is incorrect in law.

It is entirely within the discretion of employers or service providers to adopt general rules and policies. A proportionality assessment can be done with regard to the rule or policy itself without the need to conduct a full proportionality test every time a rule or policy is applied. This should be made clear in this guidance.

What changes do you think are relevant that haven’t been included?

The Supreme Court has recently affirmed that proportionality assessment, particularly but not exclusively in the context of Convention rights, can be done at the level of general policies and does not need a case-by-case assessment. This should be reflected in this guidance as that is a point of consistent confusion and misunderstanding in practice.

As the Supreme Court noted in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32:

“questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26.”

Chapter 8 Harassment

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

I think it is important to make it clear that harassment can occur even when motivated by a desire to be inclusive or to respect values of equality and dignity. Several Employment Tribunal cases in recent years have found unlawful harassment to have occurred when zealous employees have falsely referred to other colleagues as "transphobic" "bigoted" and other instances of name calling that (Eg: Phoenix v Open University; Meade v Social Work England).

It should be made clear that enforcement of lawful policies cannot be harassment, even if it causes hurt or offence relating to a protected characteristic.

Suggested Example: A male trans person seeks entry into a female-only changing room at the local swimming pool. A member of staff politely explains that this is a female-only service operating under the single-sex exceptions and in the course of explanation states "you are a man, I'm sorry but you are not allowed into the female changing room". The trans person experiences this as unwanted conduct relating to gender reassignment and considers this to be harassment. This cannot be harassment. It is merely enforcing the provision of a lawful single-sex service.

As the Court of Appeal noted in Pemberton v Inwood [2018] EWCA Civ 564 [89] “If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive”

Chapter 10 Positive Action

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

10.10 To be lawful, any action taken under the positive action provisions must be a proportionate means of achieving one of the ‘stated aims’ described in paragraph 10.6.

10.11 Proportionality requires a balancing exercise between the aim sought to be achieved and the less favourable treatment of others it may result in. The disadvantages caused must not be disproportionate to the aims pursued. The courts have broken this down into a four-stage test, which is explained in paragraph 5.53 [footnote 71].

For a measure to be proportionate:

1. The aim must be sufficiently important to justify limiting a fundamental right.

2. The measure must be rationally connected to the aim being pursued. A measure is rationally connected to an aim if its implementation can reasonably be expected to contribute to the achievement of the aim.

3. The means chosen must be no more than necessary to accomplish the aim. The court will consider whether another less intrusive measure could have been used without unacceptably compromising the achievement of the aim.

4. The impact of the rights infringement must be proportionate to the likely benefit of the measure.

10.11 The introduction of the Bank Mellat test is a welcome clarification of the law but mistates the applicable test and needs to be supplemented with further guidance to help duty-bearers understand how the test will operate. As set out below, it should be made clear that proportionality analysis does not require a case-by-case assessment and that general policies can be proportionate.

Example

10.13 Figures from competition records show that fewer women than men engage competitively in judo and this is because of their lower overall participation in the sport. A national judo organisation considers two options to meet its aim of encouraging women’s participation in the sport and thereby increasing their engagement in competitive judo.

One option is to stage a major judo competition with prize money for women that is twice the amount than for men.

The second option is to run a six-month publicity campaign which includes a limited number of free judo taster sessions for women only to encourage women to try out judo.

The first option is unlikely to be a proportionate means of achieving greater participation by women. It would discriminate against men who compete in judo and it would only benefit women already active in the sport. As such, it is unlikely to meet the third and fourth stages of the proportionality test.

The second option is more likely to be a proportionate way to meet the organisation’s aim. Although it would involve less favourable treatment of men (both in terms of more limited promotion of men within the sport and exclusion from the free taster sessions), this action could be both appropriate and necessary. It is likely to be effective in attracting more women to the sport, and the less favourable treatment of men would only be short-term.

The example at 10.13 is clear and useful, but it is evident that a policy of providing free judo lessons for women can lawfully exclude all men without any need to conduct a case-by-case assessment. This should be made explicit in this guidance as previous guidance incorrectly suggested that proportionality analysis requires a case-by-case assessment. That was a mistaken falsehood that was spread by the EHRC, creating widespread confusion among duty-bearers. It is incumbent upon the EHRC to rectify that by making clear in this guidance that the law does not require case-by-case analysis as a part of proportionality analysis.

What changes do you think are relevant that haven’t been included?

10.11 mistates the relevant test from Bank Mellat. Para 20 of Bank Mellat sets out the test for proportionality in relation to human rights. The rights contained in the Equality Act may be compatible with the ECHR but they are statutory rights and the proportionality test in relation to them is set out at paras 72 and 82 of Bank Mellat:

72. "The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."

82. "In stipulating that the requirements must be proportionate having regard to the risk, paragraph 9(6) reflects a principle which has roots in the common law: there are a number of cases where administrative acts of an oppressive or penal character have been quashed as being disproportionate, a well-known example being R v Barnsley Metropolitan Borough Council, Ex p Hook [1976] 1 WLR 1052. In the context of legislation enacted in 2008, however, it seems to me that Parliament can be taken to have been aware of the development of a more structured approach to proportionality by United Kingdom courts, in particular following De Freitas, and to have intended that that approach should be applied. I would therefore interpret paragraph 9(6) as stipulating that the requirements must be proportionate to the risk in the sense that they meet the second, third and fourth criteria listed in para 74 (it being implicit in the legislation itself that the first criterion is met)."

The difference here is subtle but important. The rights in question under the Equality Act are statutory rights, not Convention rights. If a statutory exception is applicable, the first step in Bank Mellat will be implicitly met because the aim in question is recognised in the Equality Act as legitimate.

For example, if a single-sex communal changing room has been established under Sch 3 para 27(6) because the service is likely to be used by two or more people at the same time and "the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex", the aim of providing a single-sex service in order to avoid that reasonable objection is implicitly legitimate in the text of the statute. Proportionality requirements attached to exceptions in the Equality Act must first engage the exception in question. Once that has been established however, there is no need to consider the first step of Bank Mellat and analysis should proceed, as per Lord Reed in Bank Mellat, by reference to the second, third, and fourth steps.

[It should be noted that Lord Reed dissented in Bank Mellat but Lord Sumption who wrote the majority judgment noted at para [20]: "Lord Reed, whose judgment I have had the advantage of seeing in draft, takes a different view on the application of the test, but there is nothing in his formulation of the concept of proportionality (see his paras 68-76) which I would disagree with."]

The statutory test for proportionality in the Equality Act is not as onerous as the proportionality test engaging Convention rights, given the obligations set out in the Human Rights Act. This guidance should correctly state the test for proportionality within the common law tradition of legal reasoning where human rights are not engaged.

The Supreme Court has recently affirmed that proportionality assessment, particularly but not exclusively in the context of Convention rights, can be done at the level of general policies and does not need a case-by-case assessment. This should be reflected in this guidance as that is a point of consistent confusion and misunderstanding in practice.

As the Supreme Court noted in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32:

“questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26.”

Chapter 12 Associations:

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

12.71 Associations that restrict membership to persons who share a particular protected characteristic must not discriminate in relation to any other protected characteristic.

12.71: I think there is some ambiguity here. This example presents it as if it would be unlawful to restrict membership to a group that is defined by reference to multiple characteristics; a black women's reading group; a gay muslim association; a disabled young persons reading group. Even a lesbian association will necessarily be restricted on the basis of both sexual orientation (attracted to members of the same sex) and sex (female). If it were unlawful to restrict membership to a combination of protected characteristics, that would require a sexual orientation association to be confined only to people who are same-sex orientated, regardless of sex. In my view, Article 11 ECHR, read in conjunction with the Human Rights Act would require the Equality Act to be interpreted to be compatible with the right to freedom of association for those who share multiple protected characteristics such as same-sex oriented females or muslim women.

Example

12.72 A women’s association must not refuse to accept disabled women as members.

Likewise, a women’s association must not exclude anyone who is legally of that sex, as determined by their birth certificate or Gender Recognition Certificate.

12.72: This should be a separate example if it is included. It should be made clear that without a GRC, being protected under gender reassignment does not change one's sex in law; it would therefore be lawful to exclude trans women without GRCs on the basis of their male sex.

What changes do you think are relevant that haven’t been included?

The example in 12.72 may need to be updated depending on the outcome of For Women Scotland v The Scottish Ministers (No 2).

Chapter 13 Exceptions:

Is there anything you would change to make the explanation of the legal rights and responsibilities clearer?

13.4 In general, discrimination, harassment and victimisation by a service provider, person exercising public functions or association is unlawful under the Act unless an exception applies. Any exception should normally be interpreted restrictively, so that the wording used in the exception is read as giving its narrowest meaning.

13.4: This is unclear and misleading to non-lawyers. It mistates the general rules of statutory interpretation which require that the exception provisions be interpreted and enforced in a manner which renders them effective. It should be made clear that a restrictive interpretation cannot undermine the purpose of the exception provisions. This paragraph implies that the exceptions are used rarely and when used should be applied on a case-by-case basis. It should be made clear that, if the exception is engaged, the norm shifts: if s195 is engaged, it is permitted to exclude all men from a female-only boxing tournament. This could be interpreted more restrictively by allowing some particularly weak men to compete but it would undermine the purpose of the exception to conclude that this means a general rule excluding all men would be unlawful.

Throughout the explanation of exceptions based on sex and gender reassignment, failure to be explicit that trans people without GRCs remain legally their biological sex for all purposes results in unclear and confusing guidance that does not accurately or clearly describe, explain, or apply the law. Make it clear when exceptions would be permitted and for whom - a generic descriptor of "trans persons" which fails to distinguish between male trans people and female trans people makes this guidance unworkable in practice.

Almost all of the examples provided to justify establishing single-sex services are incorrect following For Women Scotland v The Scottish Ministers [2023] CSIH 37.

What changes do you think are relevant that haven’t been included?

The law has been clarified in recent years to make it undeniable that, without a GRC, being protected under GR does not change sex in law (Green v Secretary of State for Justice [2013] EWHC 3491, [68]; For Women Scotland v The Scottish Ministers [2023] IHSC 37, [56]). Guidance on exceptions must therefore make it clear when a trans person is being excluded on the basis of their sex (where the relevant comparator must be someone of the opposite sex) or on the basis of gender reassignment (where the relevant comparator must be someone of the same sex who does not have GR as a PC). The explanations and examples used in this guidance must include and reflect this.

13.64 It is not a breach of the Act for a person to organise separate competitive sporting events for men and for women in specific circumstances (s.195(1) and (3)). These are where an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina, or physique.

13.65 This means that organising single sex or separate sex events for men and women is permitted in a sport, game or other competitive activity, where an average person of one sex is at a disadvantage compared to an average person of the other sex, due to differences in physical strength, stamina, or physique. Where there is no disadvantage due to these factors, organising separate events will be unlawful.

13.69 The Act permits service providers and those exercising public functions to restrict participation of a trans person in competitive sports, games, or other activities where an average person of one sex is at a disadvantage compared to an average person of the other sex, due to differences in physical strength, stamina, or physique (s.195(2)).

13.70 Trans persons can only be excluded from competing in the activities described at 13.65 where it is necessary to restrict their participation for reasons of fair competition or the safety of competitors. This could include restricting participation directly, or by implementing policies requiring physiological characteristics, such as certain testosterone levels, which may in practice primarily impact trans persons.

13.70: This paragraph is unclear because it fails to distinguish between exclusion based on sex and exclusion based on gender reassignment. In a female only sporting event, does this paragraph intend "trans persons" to cover both male and female people with the PC of GR? Are the rules different for exclusion of a male person with GR who does not have a GRC? This paragraph provides minimal guidance for users of the Act.

13.71 This means that organisers can prevent trans persons from participating in a single sex sporting activity with persons of the opposite birth sex, if it is necessary to do so because their participation would create a competitive advantage or disadvantage, or would potentially endanger their own safety or that of other participants. Where these factors do not apply, the exception cannot be relied on and any restrictions on their participation will be unlawful.

13.71: Make it clear that the same reasoning applies for any sex-separation. If these conditions are met, it would be unlawful to have anything other than fully mixed-sex competition. This paragraph incorrectly implies that it could be possible under these provisions to exclude males without the PC of GR but unlawful to exclude males with the PC of GR (trans women without GRCs). That is misleading.

It should be made clear that, without a GRC, trans woman are men and trans men are women under the Act. Exclusion pertaining to average physical strength for trans women must be applied equally to any other man and vice versa because the basis of exclusion, if it is to be lawful, must pertain to the trans woman's male sex. If exclusion purports to be based on physical strength but excludes "trans people" regardless of their sex, it will not be lawful because it will not be sex discrimination, it will be gender reassignment discrimination. Similarly, if exclusion is based on testosterone levels, the guidance needs to make it clear whether this is based on naturally occurring testosterone levels in males (which would likely be sex discrimination) or artificially increased testosterone levels in natal females who identify as trans men (which would be gender reassignment discrimination). Failure to be clear about the comparators, because the guidance fails to be clear about the sex of trans people, renders this guidance unworkable in practice.

Example

13.72 A boxing gym runs a weekly full-contact sparring session for men. A trans man wishes to join the session. The gym declines his request. This may be lawful if the gym can demonstrate that that there would be a genuine health and safety risk if he were allowed to join the session.

13.72: Again it is important to be clear that exclusion of this trans man may be either sex discrimination or gender reassignment discrimination depending on whether exclusion is based on the fact that the boxer is female or because the boxer is a female who has undergone a process or part of a process of reassigning sex. This example fails to make it clear that if it is because the boxer is female, the same exclusion would necessarily have to apply to all females in order for this to be justified sex discrimination.

13.73 It will often be necessary for organisations to develop general policies to guide and inform their decision making in this area. Policies should be supported by a clear rationale and evidence base and will often wish to draw upon guidance from sporting authorities. Relevant factors may include:

• whether an activity is primarily competitive or social and recreational and whether it is elite or mass participation. These factors may be significant in determining the relative weight given to inclusion, fairness and safety

• whether there are specific risk factors such as those arising from physical contact

• the extent to which there are competitive advantages arising from factors such as physical strength, stamina or physique

• whether such competitive advantage can be sufficiently reduced through medical intervention (such as drugs to reduce levels of testosterone) to make the competition fair

Example

13.74 The organisers of a women’s fun run are developing a policy in respect of the participation of runners who are trans women. They decide to allow trans women to participate in the event. Their reasons for this are because they wish the event to be as inclusive as possible and because the event is a non-competitive event whose primary aim is to raise charitable funds.

13.74: This example does not rely on any exception in the Equality Act. It is merely something not prohibited by the Act (assuming that it is not indirectly discriminatory on the basis of sex by putting female competitors at an unjustified disadvantage). This example should be replaced with two examples involving the participation of trans people in competitive gender-affected activities. One example should be of legitimate sex discrimination covered by the exception and another should be of legitimate gender reassignment discrimination covered by the exception. Again, failure to reflect developments in the law to clarify the comparator tests and the fact that trans people without GRCs are unequivocally their natal sex for the purposes of the Equality Act mean that this guidance is inaccurate and unclear.

Sample example 1: The organisers of an athletics competition decide that it would not be fair to allow male people to compete in the female category. This policy will exclude trans women without a GRC on the basis of their male sex and trans women with a GRC on the basis of gender reassignment. Both exclusions are justified.

Sample example 2: The organisers of a boxing competition are deciding how to accommodate trans men (natal females with the PC of gender reassignment). They decide that it would not be fair or safe to allow trans men to compete in the male category but neither would it be fair or safe to allow those trans men who take exogenous testosterone to compete in the female category. They implement a policy which permits trans men who have lowered levels of testosterone to compete in the female category but exclude trans men who have heightened levels of testosterone. This would be justified gender reassignment discrimination.

13.83 The Act does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) offers separate services for men and women in specific circumstances.

13.84 It is only lawful to provide a separate-sex service if:

1. a joint service would be less effective, and

2. providing the service separately is a proportionate means of achieving a legitimate aim (Sch. 3 para 26(1))

13.85 If these conditions do not apply, the provision of separate-sex services is likely to be unlawful sex discrimination.

13.85: Discussion of proportionality should reflect developments clarifying that general rules and policies are often the default, that generality is not an indicator of disproportionality, and that there is no requirement for a case-by-case analysis. This is essential to clarify and correct an erroneous statement to the contrary in previous guidance. As the Supreme Court noted in Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32:

“questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26.”

What changes do you think are relevant that haven’t been included?

The Code of Practice then discusses exceptions relating to single-sex services. All of the examples used are incorrect if we take the EHRC position that sex means certificated or legal sex in the Equality Act.

13.92 The Act (Sch. 3 para 27) does not prohibit sex discrimination where a service provider (including a person providing a service in the exercise of public functions) provides a service exclusively to one sex, if to do so is a proportionate means of achieving a legitimate aim, and at least one of the conditions in paragraphs 13.93 to 13.103 applies.

13.93 (1) Only people of that sex need the service.

Example

13.94 Routine breast cancer screening can be offered specifically to women, since predominantly women need the service.

Service providers should be mindful that it may be necessary to extend use of a single-sex service in exceptional circumstances. For example, in rare circumstances, men can get breast cancer and so some men may require screening.

13.94: This example is incorrect following For Women Scotland v The Scottish Ministers [2023] CSIH 37. If some men can get breast cancer, then a breast cancer screening service is not a service that only people of one sex need. An alternative example would be cervical cancer screening. This will however create a problem for the EHRC position that a GRC changes sex in the Equality Act because then that would also be a service needed by both men and women. I can't think of any service that is only needed by members of one legal sex if that category is a mixes-biological sex category. Neither example meet the conditions set out in Schedule 3 para 27 (1). The EHRC will need to identify an example or conclude that no such service exists or could possibly exist, rendering this provision nugatory.

13.95 (2) A service that is provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex.

Example

13.96 If some women, such as those with a certain religion or belief, will not use a local swimming pool at the same time as men, women-only swimming sessions could be provided, as well as mixed sessions.

13.96: This example is also incorrect following For Women Scotland v The Scottish Ministers [2023] CSIH 37. Women-only swimming sessions need to be interpreted as legal women only following this decision. You cannot rely on reasons grounded in the need for a biological female only swimming session to justify the establishment of a legal women only swimming session. A biological female only swimming session established to meet the religious needs of some women will not and cannot be set up on the basis of legal sex. You would need to identify an example that justifies establishing a service on the basis of legal sex. The establishment conditions must be met first before any further discussion of exclusions or exceptions in the operation of that service can be analysed. This example fails to account for For Women Scotland v The Scottish Ministers and therefore fails to meet the establishment condition in Sch 3 para 27(3).

13.99 (4) The service is provided at a hospital or other place where users need special care, supervision or attention.

Example

13.100 A hospital provides a single-sex Obstetrics and Gynaecology (OBGYN) ward for women, as this is a service specifically required by women and is an intimate form of healthcare that requires privacy.

13.100: Again, this example fails to account for the impact that For Women Scotland v The Scottish Ministers will have on the establishment conditions of women only services if women is a biologically mixed-sex category. Following that case, an Obstetrics and Gynaecology (OBGYN) ward is not and cannot be a service specifically required by women because some legal men (natal females (trans men) with GRCs) will need the service. This example fails to meet the establishment condition.

13.101 (5) The service is for, or is likely to be used by, more than one person at the same time, and a woman might reasonably object to the presence of a man, or vice versa.

Example

13.102 Separate male and female changing rooms.

13.102: This example is incorrect following For Women Scotland v The Scottish Ministers [2023] CSIH 37. On what basis would it be reasonable for a woman to object to the presence of a legal man in her changing room but not a legal woman, if all that distinguishes one from the other is a confidential certificate? No reasonable objection can be based on possession of lack of a confidential certificate. It is evident that this example uses an exclusively biological understanding of "male" and "female" which is precluded by For Women Scotland v The Scottish Ministers [2023] CSIH 37. This example fails to meet the conditions set out in Sch 3 para 27(5) if For Women Scotland in the Inner House is correct, which the EHRC position reflects.

13.103 (6) The service is likely to involve physical contact between the service user and another person and that other person might reasonably object if the user is of the opposite sex.

Example

13.104 A female carer only provides intimate personal care to female clients as she is uncomfortable providing this type of care to men in a domestic environment.

13.104: This example is incorrect following For Women Scotland v The Scottish Ministers [2023] CSIH 37. Again this example is obviously adopting an exclusively biological understanding of "female" which is inconsistent with the EHRC position. Another example will need to be provided which correctly draws the reasonable object on grounds of legal sex, not biological sex. My view is that no such example exists, rendering the operation of these provisions nugatory.

The EHRC must confront the implications of its position that sex in the Equality Act is modified by the Gender Recognition Act. If that is the position it adopts, it will need to rewrite all of these examples to explain how they will operate on the basis of certificated sex, not biological sex. It cannot maintain in one part of this guidance that sex means certificated sex and then revert back to biological sex when explaining these exceptions. That would render this guidance unclear and unworkable.

13.107 Whether providing separate-sex or single-sex services, service providers must be able to demonstrate that it is a proportionate means of achieving a legitimate aim. Proportionality requires that they balance the impact on all service users of providing services only to one sex or providing services separately or differently for men and women. Policies should also be applied flexibly and should consider where there are specific circumstances that may justify departure from the policy.

13.107 The statement that policies should be applied flexibly does not account for developments in the law that establish that failure to provide single-sex services can amount to direct sex discrimination if it treats women less favourably. In Earl Shilton Town Council v Miller [2023] EAT 5, the Employment Appeal Tribunal concluded at [28] that "A woman being at risk of seeing a man using the urinals is obviously not the same as the risk of a man seeing another man using the urinals. Put another way, if one starts by considering the nature of the treatment, the claimant was not provided with toilet facilities that were adequate to her needs, because of the risk of coming across a man using the urinal".

Guidance that encourages service providers to be flexible in allowing men to use female-only facilities must include guidance that this will be unlawful direct sex discrimination if it treats women less favourably than men. There should be an example in this guidance which reflects this development in the law. It should be made clear that the requirement of proportionality will always be met if the action complained of is necessary to meet a statutory obligation, including obligations not to engage in direct sex discrimination. Failure to provide clarity on this point while providing guidance that "Policies should also be applied flexibly and should consider where there are specific circumstances that may justify departure from the policy" is therefore misleading and does not accurately reflect the law.

13.111 If a service provider (including a person providing a service in the exercise of public functions) provides single- or separate sex services for women and men, or provides services differently to women and men, they should consider their approach to trans people’s use of the service (Sch. 3 para 28).

13.111 Again this statement provides partial guidance. Following developments in the law relating to sex discrimination, service providers should also consider whether an approach of trans inclusion could amount to direct sex discrimination against female users. This will require the guidance to differentiate between male trans people and female trans people, which it currently does not do. The sex of the trans person will matter for whether inclusion within a female-only service will amount to direct sex discrimination and this guidance should reflect that.

13.112 Providers should note that for the purposes of the Act, ‘sex’ means legal sex [footnote 79]. This is a person’s sex recorded either on their birth certificate, or their Gender Recognition Certificate.

13.113 There are circumstances where a separate or single-sex service provider can prevent, limit, or modify trans people’s access to the service. This is allowed under the Act. However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if the service provider cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a GRC or not.

13.113 does not fully reflect developments in the law relating to sex discrimination, as mentioned above. This guidance should mention that service providers should be aware that including male trans people in female-only services can amount to unlawful sex discrimination if it treats women less favourably. This guidance should include reference to the risk of seeing a male body in a state of undress, interference with privacy rights, and the risk of inclusion amounting to religious discrimination against those women who cannot be in a state of undress or use toiletry facilities in the presence of men.

13.114 Whether this is lawful will depend upon the nature of the service and may link to the reason the separate or single-sex service is needed. A legitimate aim could be the safety, privacy, or dignity of others.

Example

13.115 Prison authorities decide that any trans prisoner who is convicted of violent offences against women will be housed in the prison that matches their sex registered at birth. The legitimate aim being pursued would be ensuring the safety of others.

13.115 implies that it would be lawful to house a male trans prisoner who has not been convicted of violent offences against women in the women's estate. Given developments in the law relating to sex discrimination mentioned above, this should not be presumed or implied in this guidance. Housing a male individual in the female prison estate could treat female prisoners less favourably as per Earl Shilton Town Council v Miller [2023] EAT 5 and may be unlawful direct sex discrimination. The EHRC should not produce guidance that causes service providers to act unlawfully.

13.116 The service provider must then show that their action is a proportionate way to achieve that aim. This requires that they consider the impact of their decision or approach on all service users, particularly those who may be disadvantaged.

13.117 Providers should balance and take account of the needs of different groups. They should consider whether the reason for preventing, limiting or modifying trans people’s access to any service outweighs any discriminatory effects of the treatment (whether the impact on trans people is outweighed by the impact on other users if trans people were fully included).

13.118 If the justification for limiting or denying trans persons’ access to the single sex service for their acquired gender does not outweigh the potential discriminatory effects, it is likely to be unlawful to do so.

13.119 If the service provider’s reason for their action does outweigh the discriminatory effects, it is likely to be lawful to exclude trans persons from the single sex service of the gender in which they present, or to modify or limit their access to the service.

13.116-12.119 imply that the lawfulness of policies determining who has access to female-only services involves a balancing exercise. It will not if allowing male individuals into female-only services constitutes direct sex discrimination or direct religious discrimination. The limited provision mentioned in Sch 3 para 27 is the provision of services only to persons of one sex. If the service is being provided to persons of either sex, it is not a single-sex service for the purposes of Sch 3 para 27.

This guidance should reflect For Women Scotland v The Scottish Ministers [2023] CSIH 37, at [56] "Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex." There is no prima facie right to access services provided for members of the opposite sex. Providing a mixed-sex service takes the service out of the scope of Schedule 3 paras 27-28 and can amount to direct sex discrimination if it treats women less favourably than men. None of these developments in the law have been included in this guidance. They should be. Without them this guidance is in danger of causing service providers to unlawfully discriminate.

Example

13.120 A private nursing home has separate wings for men and women, as a large proportion of residents request single-sex accommodation for reasons of privacy and dignity. A trans woman asks to reside in the women-only wing of the nursing home. The provider must consider whether there is any impact on the privacy and dignity of existing service users living in the women’s wing, and balance this against any potential negative impact on the trans resident, such as her privacy and dignity, if she were asked to reside in a male-only wing.

13.120 again this example presumes that a balancing exercise must be conducted. The question that must be answered first and foremost is whether inclusion of a male person in a female-only ward would put the female patients at a disadvantage. If it would treat female patients less favourably, it will constitute direct sex discrimination and no balancing exercise could justify it. Maintaining the female-only ward may constitute direct sex discrimination against the male individual seeking access but that is covered under the Sch 3 para 27 exception. If it is not, then the female-only hospital ward would be unlawful and would need to revert to being a mixed-sex ward and permit all males, not just those with the PC of gender reassignment, because the para 27 exception could not be relied on to exclude any male.

Again this example fails to distinguish between male trans people and female trans people. Exclusion of a trans woman without a GRC from a female-only hospital ward is not gender reassignment discrimination. It is sex discrimination. A better example would involve a trans man without a GRC, who is therefore unequivocally female under the Equality Act, being excluded from the female-only ward by virtue of the effect that exogenous testosterone has had on that patients physical appearance. In that case, exclusion would be gender reassignment discrimination and would fall to be justified as proportionate. It would likely not be proportionate in a hospital ward context but could be in a rape crisis centre by virtue of the impact a masculinised appearance can have on vulnerable service users. The comparator for gender reassignment discrimination is, following Green v Secretary of State for Justice [2013] EWHC 3491 (Admin) and For Women Scotland v The Scottish Ministers [2023] CSIH 37, someone of the same sex without the PC of GR. None of the examples used in this guidance makes this clear. There should be some examples involving exclusion of trans men from female-only services as instances of gender reassignment discrimination.

13.121 It will often be necessary for service providers to have a policy setting out how single-sex services are provided to trans people. When developing a policy, it is important to consider how it may be applied flexibly, and that some specific circumstances may justify a departure from the policy. Any policy should set out clear criteria that allow a provider to consider particular circumstances as they arise.

13.122 Appropriate considerations about whether it is proportionate to exclude, modify or limit trans people’s access include where a service provider has limited resources or physical space to alter the way the service is provided, or if they are dealing with groups with particular needs; for example, victims of sexual assault.

13.123 Service providers should, in all circumstances, treat individuals with dignity and respect, and should consider a course of action which, as far as possible, balances the needs of all service users.

13.121-123 fail to account for circumstances where failure to provide and operate female-only services could constitute unlawful sex discrimination. Calls for flexibility should come with a warning that being too flexible can amount to unlawful discrimination. Again these paragraphs do not include relevant law relating to sex discrimination.

Conclusion

In general the Code of Practice fails to recognise that those protected under the characteristic of gender reassignment will be either male or female. All statements or examples involving trans people treat them as a monolith. This does not accurately reflect the legal position and consequently fails to provide accurate, clear guidance in circumstances where legal rights and duties differ depending on the sex of the person in question. This guidance should accurately reflect the law first and foremost. Describing males with the protected characteristic of gender reassignment as "trans women" without any explanation that they are men for the purposes of the Equality Act (ignoring GRCs and FWS2) renders the guidance unworkable and positively contributes to misunderstanding of the law. Prioritise clear unambiguous explanation of the law above all else. That is what this guidance is supposed to do.