Question 13: (A) Do you think that the operation of the single-sex and separate-sex service exceptions in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
I think the operation of these exceptions would be affected in two major ways by a change to the process of acquiring a GRC.
First, some organisations which currently make use of the exceptions outlined in Schedule 3, paragraph 27 (to offer single-sex services which do not exclude transsexual people) may decide that they need to use the exceptions outlined in paragraph 28 in addition to this (to exclude transsexual people).
This is because a person who identifies as transgender but does not have a GRC retains their birth sex as their legal sex. An organisation which wishes to provide services that are open to people who are female by birth and those who are female because they have a diagnosis of gender dysphoria and have satisfied the other criteria for obtaining a GRC, may do this by using the exceptions in paragraph 27. This may well be a proportionate means of achieving a legitimate aim (for example, providing an effective refuge service for women who have experienced domestic violence).
Such an organisation is not obliged to include someone who cross-dresses occasionally, or someone who identifies as gender fluid. These people retain their birth sex and are not therefore being discriminated against on grounds of gender reassignment if they are refused access to a single-sex or separate-sex service for the opposite sex. As argued by barrister Julian Norman at https://filia.org.uk/news/2018/8/23/has-everyone-really-got-it-wrong, “where a person has the protected characteristic of gender reassignment but does not have a GRC, their comparator class in looking at a discrimination claim is other members of their birth sex who are not proposing reassignment. Once they do have a GRC, their comparator class is members of their acquired sex.”
If the process for obtaining a GRC is made less restrictive, then people who have no dysphoria and who are undertaking no medical treatment may nevertheless change their legal sex and be legally entitled to access single-sex services for their acquired sex. If organisations wish to continue to achieve the legitimate aim of providing an effective service for (say) women who have experienced domestic violence, they may then feel that the only way for them to do so is to exclude all transsexual people, by applying the exceptions in paragraph 28.
Restricting women’s refuge services to women only is an integral part of making those services effective, as explained by a contributor to the Fair Play for Women report on Supporting women in domestic and sexual violence services (https://fairplayforwomen.com/wp-content/uploads/2018/09/FPFW_report_19SEPT2018.pdf):
“I have previously worked in, and run, refuges for Women’s Aid. The idea of any male who identifies as a woman having access scares me. People … speak of the assessment process to access a refuge and how this would weed out potential abusers. Firstly, this is ridiculous because it is impossible to tell someone’s intentions and many abusers are good at putting on a front (it’s the same logic that says that women should automatically know who is a rapist and who isn’t).
“Secondly, I think people who believe this have no idea how basic the assessment to actually enter the refuge can be, especially if out of hours. The over-the-phone assessment done at weekends or in the night is incredibly basic (a handful of questions) and also relies on the person replying honestly and we did not meet the person before they turned up to the refuge… In this situation a male could arrive on the doorstep of a house staffed by one female worker at three in the morning, with abused women and children in bed, and with hardly any assessment of any kind.”
This change would obviously be to the detriment of transsexual people, who have hitherto been included in some single-sex and separate-sex services.
Secondly, a change in the law may have the effect of altering the basis of the exceptions, by influencing public opinion and the opinion of powerful organisations such as local authorities and other funding organisations as to what constitutes a legitimate aim.
If the basis for a person to change their legal sex is their own self-identification, then this will tend to reinforce the philosophical belief held by some people that a person’s internal sense of gender identity is the only valid determinant of their sex.
While I do not believe that this is currently a view held by the majority of people in the country, it is already being expressed by many public bodies, including organisations which are responsible for funding and commissioning services who make use of the exceptions in the Equality Act.
An official strengthening of this philosophical belief would make it more difficult for organisations to assert the contrary belief that it is legitimate to define sex on the basis of biology and to restrict some services to biologically female people.
The result would be that although the exceptions remain unchanged in the letter of the law, they become impossible to implement in practice.
This change would be to the detriment of users of single-sex and separate-sex services (who are mainly female).
While these two changes may appear to be contradictory, I think it is possible that both would occur at the same time, as local authorities and service providers interpret the law differently in different places and circumstances.
NB I disagree with the interpretation offered in this consultation and in EHRC guidance, which states that organisations wishing to apply the exceptions in Schedule 3, paragraph 28 of the Equality Act to exclude transsexual people from single-sex or separate-sex services must make their decision about whether this is proportionate on a case by case basis. This is in no way implied by the wording in the Act, which merely states that it is lawful to do so if this is a proportionate means of achieving a legitimate aim.
There are many situations in which a general exclusion of transsexual people from a single-sex service is necessary (and therefore proportionate) in order to achieve a legitimate aim. For example (in fact, the example given in the explanatory notes for the Act: https://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/16/20/7/5/3), a service for female survivors of sexual abuse may legitimately decide to guarantee to potential participants that their group counselling service will be open to female people only. This is because people who need to use a service of this kind are very likely to be retraumatised by the presence of a biologically male person in their group. In order to give such a guarantee to female service users, the organisation would need to have a general policy of excluding transsexual women from that service, and not to consider each case individually.
I hope that this guidance will be revised and clarified, whether or not there are changes to the GRA.