Question 9: Do you think the privacy and disclosure of information provisions in section 22 of the Gender Recognition Act are adequate?
An issue of concern that is not mentioned here is the fact that Section 22 of the GRA presents a practical difficulty for any organisation wishing to use the exceptions outlined in paragraph 28 of Schedule 3 (Part 7) and paragraph 1 of Schedule 9 (Part 1) of the Equality Act 2010.
Paragraph 28 of Schedule 3 permits organisations to provide services for female people only (not including people who are transsexual) and paragraph 1 of Schedule 9 permits employers to specify that being female (and not being a transsexual person) is a genuine occupational requirement for a particular post. Both of these exceptions have been used in the past to provide appropriate and effective services for women and girls who have experienced sexual violence or intimate partner violence.
The Equality Act rightly permits women-only services to be provided, and some jobs to be reserved for biological women only. For some people, the presence of biologically male people in a therapeutic space or a place of refuge would make the services inaccessible.
The Women’s Resource Centre report, “Hearing Women’s Voices: Why women 2018” brings together powerful testimony from users of four different women’s organisations, illustrating the many reasons why women need the choice to access women-only services. (https://thewomensresourcecentre.org.uk/wp-content/uploads/WRC-Report-2018-Full-Report-FINAL-4th-June.pdf)
The report describes how “Across all of the focus groups, participants talked about how much women-only organisations matter. They said women-only services and spaces are ‘essential’, they are ‘crucial’, they are ‘vital’, they are ‘necessary’. They all spoke from their own experience of accessing women-only services or groups. In women-only organisations women felt safe, they felt more confident to be able to be themselves, felt they would not be judged, not be silenced, and that they could
share difficult experiences.” (page 29)
The government has an opportunity to affirm the importance of women-only services as an option for those who need them, by including the provision of single-sex services or employment as one of the circumstances in which it is justified to disclose information about an individual’s gender reassignment.
As things stand, Section 22 of the GRA makes the exceptions in the Equality Act difficult to apply in practice, and a move towards a self-declaration model for obtaining a GRC would only intensify this problem. If that approach is taken, it is all the more important to permit disclosure where it is necessary for service providers or employers to use the Equality Act exceptions.