Equality Act and single sex spaces

This is the part of Suella Braverman’s referring to the Equality Act and how the law protects single sex spaces. The Equality Act applies to the whole of the UK, including Scotland, so any proposed change to the law which has an adverse impact on the Act would be ruled out on that basis.

Cases that have arisen under the Equality Act 2010 are yet another ‘vivid illustration of how aspirational legislation can so easily be blown off course’. This point was made by Lord Faulks QC in his foreword to Paul Yowell’s excellent Policy Exchange paper on the Act. The Act represents a codification of the UK’s anti-discrimination law – some 116 prior Acts and Regulations. In part prompted by European Union law, the Act gold-plates and goes further than what the EU required in some areas. The aim of the Act was no doubt laudable, but its interpretation sits uncomfortably with our Human rights tradition. Its interpretation by various sectors is causing huge confusion for those attempting to decipher the correct balance of competing rights and protected characteristics. To be clear, I do not advocate repealing or scrapping the Equality Act. I am concerned about incorrect interpretation of its provisions.

This particularly applies to how we, as a society, support those people who claim protection of ‘gender reassignment’ whilst at the same time supporting those who seek protection of rights defined by biological sex. Both public and private bodies are struggling to understand their obligations. My aim today is to provide clarity on the law.

For the purposes of Gender Recognition Certificates, we do not operate a system of self-identification in England and Wales. But some service providers behave as if they have a legal duty to admit biological males who identify as females into women-only spaces, from rape crisis centres and domestic abuse refuges to bathrooms and changing rooms. In my view this is not in accordance with the law.

The law supports the position adopted by my colleagues Nadine Dorries as Culture Secretary and Nadhim Zahawi when in post as Education Secretary. Paragraphs 26 and 27 of schedule 3 of the Equality Act are clear. They permit direct discrimination on grounds of sex: they permit “women only” and “men only” services, provided that the rule is a proportionate means of achieving a legitimate aim.

In law, single sex services are intended for one sex only: that is the very thing permitted by schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are XY chromosome adults using it, however they define themselves personally, it becomes mixed-sex. The existence of a Gender Recognition Certificate can create a legal position but cannot change biological reality. The operation of the Equality Act is such that the permission to discriminate on grounds of gender reassignment is permission to discriminate against someone who may be the ’right’ biological sex for a particular activity but has the protected characteristic of gender reassignment.

By way of example a ‘women-only’ rule for a women’s judo class excludes all men and will be lawful under paragraph 26 if a joint service would be less effective, and it is a proportionate means of achieving a legitimate aim. It will no doubt put people with the protected characteristic of gender reassignment (e.g. trans-women, by that I mean a biological male who identifies as a female) at a disadvantage compared to those without that characteristic. But in my view if the benefit that it confers is sufficient to justify direct discrimination against the whole class of men, it will in almost all circumstances be sufficient to justify indirect discrimination against a much smaller class of trans-women.

This interpretation is in fact supported by the explanatory notes to the Equality Act. Those notes give an example of a group counselling service for female victims of sexual assault. In that case, it is clear that an individual with the protected characteristic of gender reassignment (e.g. a trans-woman) could be lawfully excluded, if organisers believed that otherwise, women would be unlikely to attend the session. This position has also been upheld by recent guidance from the Equality and Human Rights Commission as well as case law such as the Elias case in the Court of Appeal, approved in Homer in the Supreme Court.

So if one group incurs a modest particular disadvantage and another group incurs a more serious particular disadvantage, justification for exclusion can be lawfully established.

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