Question 15: Do you think that the operation of the communal accommodation exception in relation to gender reassignment in the Equality Act 2010 will be affected by changing the Gender Recognition Act?
As I understand the law, it is already lawful to exclude people of a particular sex from communal sleeping accommodation. So unless a transsexual person has changed their legal sex, they cannot expect to be accommodated in (for example) a dormitory for the opposite sex in a youth hostel. The hostel should make reasonable provision for such a person (for example, by offering them a single room, if there is one available).
It is also currently lawful for an organisation to exclude people from communal accommodation who have changed their legal sex, if this is a proportionate means to achieve a legitimate aim. Different organisations will be making different judgments about what is the appropriate policy in their case.
As with questions 13 and 14, a change to the criteria for obtaining a GRC may cause organisations which have previously considered it disproportionate to discriminate against transsexual people with a GRC, to change their policy. They may feel that discriminating against transsexual people is now the only way to ensure that their customers are guaranteed privacy from members of the opposite sex while they are undressing and sleeping.
My understanding is that this aspect of the law is widely misunderstood and misrepresented. I think this situation could worsen if self-declaration is introduced as the sole criterion for obtaining a GRC. There is already a widely promoted myth that it is illegal to treat a trans person differently from anyone else of their declared gender. Even the EHRC’s guidance gave this impression until October 8th. This view would be strengthened by a change in the law.
I would like to see a thorough review of how all the single-sex exceptions are being applied in reality, and new, unambiguous guidance issued.
In particular, I would like the prison service to adopt a blanket policy that women’s prisons will only be used to accommodate prisoners who are biologically female. Given that:
- over 40% of the prisoners currently identifying as trans have been convicted of sexual or violent offences
- 53% of women in prison report having experienced emotional, physical or sexual abuse during childhood
- 46% of women in prison report having suffered domestic violence (information on women in prison from http://www.womeninprison.org.uk/research/key-facts.php)
- women have already been assaulted in prison by a self-declared trans woman, who had been placed in the female estate
I believe that a blanket policy of ensuring that womens prisons are a female-only environment would be a proportionate means of achieving a legitimate aim.