EHRC guidance on the Equality Act sex and gender reassignment provisions for separate and single-sex service providers

Introduction

Earlier this month, the Equality and Human Rights Commission (EHRC) published advice and guidance for separate and single-sex service providers with regards to the sex and gender reassignment provisions in the Equality Act 2010.

This guidance, which applies to service providers in England, Scotland and Wales includes hypothetical examples of where access to services by trans individuals can legitimately be prevented, limited and/or modified. The purpose of the advice and guidance is to help service providers to comply with their legal obligations; however, it is worth noting that the guidance is not legally binding – it is the EHRC’s interpretation of current legislation.

Whilst the guidance does not refer to schools specifically, and it may be that school specific guidance may be issued in the future, there are a number of points which are likely to be relevant for schools. A link to the guidance is included here.

The law

By virtue of the Equality Act, service providers cannot discriminate against someone based on sex or gender reassignment. However, there are exceptions where access for certain groups can be prevented, modified and/or limited if there is a “legitimate aim”. The guidance states that a legitimate aim may include reasons such as privacy and dignity, preventing trauma or opportunistic sexual harassment and/or ensuring health and safety. For schools, this is likely to come under the umbrella of safeguarding.

In addition to having a legitimate aim, service providers must be able to show that their action is a proportionate way of achieving that aim. This involves balancing the impact of providing separate or single-sex services on all service users.

There are circumstances where a lawfully established separate or single sex service provider can prevent, limit or modify trans people’s access to a service. However, service providers must consider that this might be unlawful if they cannot show such an action is a proportionate means of achieving a legitimate aim.

The non-discrimination provisions in the Equality Act apply whether the person has a Gender Recognition Certificate (GRC) or not. It is noted in this regard that the Gender Recognition Act 2004 only applies to over 18s and, as such, most trans and non-binary school pupils will not have a GRC.

Separate sex and single-sex services

Separate or single sex service providers are those who provide a service where some element or all of the service is available to:

• only one sex
• separately to each sex
• differently to people of each sex.

Separate sex services

Separate sex services are those provided to both sexes but separately and/or differently.

The guidance states that service providers should only provide a separate sex service if a joint service would be less effective and providing that separate service is a proportionate means of achieving a legitimate aim, e.g. for reasons of health and safety. This requires balancing the impact on all service users of providing services separately.

The guidance provides male/female only homeless hostels as an example of separate sex services, though in a school context this could potentially apply to boarding houses. For trans boarding pupils, we generally advise schools to find an approach that is practical and enables pupils to fully participate, if possible.

Single-sex services

If a service provider is providing a single-sex service (i.e. a service for one sex only), the guidance states that they must be able to meet one of the following conditions:

• Only people of that sex need the service
• Providing the service jointly to both sexes would not be sufficiently effective
• The level of need for the services makes it not reasonably practicable to provide separate services for each sex (for example, a unit for women who have experienced domestic violence can be set up even if there is no parallel men-only unit because of insufficient demand)
• The service is provided at a hospital or other place, where users need special care supervision or attention
• The service 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)
• Because a person might reasonably object to the service user being of the opposite sex as the service involves physical contact.

Key considerations

As service providers, schools should carefully consider their approach to trans pupils by ensuring that they meet the conditions of the Equality Act. The guidance recommends that service providers record the reasons why they have taken their decision to provide a separate or single sex service along with supporting evidence.

Schools must seek to balance the different interests and needs of those who use or wish to use their service. School leaders must think about how their actions will affect trans and other service users and consider less restrictive options where possible and communicate well.

Our guidance note which explores these issues in more depth is currently being updated in light of the latest advice and guidance and will be circulated shortly. An interactive webinar with ISBA on this topic is scheduled for 24 June.