EHRC consults on statutory code of practice
Sex Matters is encouraging people to respond to the EHRC’s consultation on its revised Statutory Code of Practice for service providers (deadline Friday 3rd January). This covers the provision of single-sex services, sports and associations.
Our action page explains how to respond.
Confusion over these services is longstanding. Since the Equality Act was passed, the government, the Equality and Human Rights Commission (EHRC), the Government Equalities Office (now the Office for Equality and Opportunity) and Stonewall have all been suggesting that “man” and “woman” are categories based on gender self-identification: telling organisations that the protected characteristic of gender reassignment gives people the right to use opposite-sex facilities and services, and that they may be excluded only on a case-by-case basis.
The root cause of this misunderstanding is in current statutory code of practice from the EHRC (published in 2011) which says:
“If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present.”
EHRC Code of Practice, 2011
This was always wrong in law, just like the idea that those who questioned it were “not worthy of respect in a democratic society”. In recent years these misunderstandings of the law have been overturned by the Forstater judgment and the first For Women Scotland case.
Once you recognise that “man” and “woman” are realities, not social constructs or subjective feelings, it becomes clear that it is not possible to provide a single-sex service while letting in members of both sexes. Furthermore, allowing people into opposite-sex spaces can create a hostile and humiliating environment for all.
Cases focused on single-sex services are now coming to court, including Brighton Rape Crisis Centre, Darlington Nurses, NHS Fife and NHS England. Sex Matters is also challenging the British Transport Police on its policy that a “single sex search” can involve a man (with a certificate) searching a woman.
The EHRC is currently updating its Code of practice for services, associations and public authorities (there is a separate code of practice relating to employment), and consulting on it. The deadline for responses is 3rd January 2025.
It is vitally important that the commission gets replies from both individuals and organisations, including service providers across different sectors.
The code is intended to:
- help organisations to understand their responsibilities and avoid complaints and discrimination claims
- help members of the public to understand the law and what they can do if they believe they have been discriminated against, harassed or victimised
- help lawyers and other advisers to advise their clients
- give guidance to the courts on matters designed to ensure or facilitate compliance with the act.
The updated code of practice includes references to some of the cases that have demonstrated that gender self-ID is not the law, and has removed some of the worst advice from the previous version – such as that “any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances” – but it still promotes the idea of “case-by-case” assessment.
We think it still falls short of being the clear lawful guidance that is needed.
What needs improvement?
Be clear on the protected characteristics
At the core of the Equality Act are the nine protected characteristics. There has been increasing legal clarity about the characteristic of sex in the Equality Act which is not reflected in the new draft.
The code of practice is currently not at all clear about the meaning of the protected characteristic of sex. It invents new terms like “legal sex” (which it introduces in chapter 13), and it talks about “trans women” and “trans men” without making clear that in the Equality Act the terms “woman” and “man” relate to sex, not self-identified gender.
It is (at best) vague about the protected characteristic of gender reassignment. It suggests that sex is simply a matter of administrative registration and it is possible for a man to “live as a woman” (and vice versa) and to “transition from one sex to another” without explaining what it means by this. Instead of alluding to the mythical idea of sex change it would be better to describe practical actions such as someone changing their name, dressing like the opposite sex or having cosmetic surgery.
It is negative about the protected characteristic of belief. It uses examples to demonstrate the types of philosophical belief that are not worthy of respect in a democratic society and so not protected by the Equality Act, but doesn’t provide a positive example of gender-critical belief.
Give examples to help people think about harassment in relation to sex and gender reassignment
In the section on harassment the guidance could give examples which demonstrate some of the lessons from the run of successful belief-discrimination cases, and the issues in the upcoming single-sex services cases.
Currently, organisations are terrified that “misgendering” is harassment, and this prevents them communicating and enforcing clear and lawful sex-based rules.
The code does correctly state that courts are unlikely to find that “unwanted conduct” meets the test for harassment if they see that a service user is hypersensitive. It also says it is relevant to consider whether the alleged harasser is exercising any other rights such as expressing an opinion related to a religious or philosophical belief. It could give an example here.
It could and should also put these points together and add that if someone finds ordinary language used respectfully to communicate a lawful rule or policy “unwanted” (such as explaining that a space is female-only and noting that they are male) this would also not meet the test for harassment, even if they were deeply offended by it.
It would also be helpful if it were to give an example of sex-based harassment involving single-sex spaces such as a gym having a policy of allowing men who identify as “trans women” into the women’s changing rooms and showers. This creates a hostile and humiliating environment for the women using the space since they rightly perceive the person as male.
Correct the section on sport, which is wrong in law
We think the section on the sport exception is wrong in law. It says:
13.69 The Act permits service providers and those exercising public functions to restrict participation of a trans person in competitive sports, games, or other activities where an average person of one sex is at a disadvantage compared to an average person of the other sex, due to differences in physical strength, stamina, or physique (s.195(2)).
13.70 Trans persons can only be excluded from competing in the activities described at 13.65 where it is necessary to restrict their participation for reasons of fair competition or the safety of competitors. This could include restricting participation directly, or by implementing policies requiring physiological characteristics, such as certain testosterone levels, which may in practice primarily impact trans persons.
13.71 This means that organisers can prevent trans persons from participating in a single sex sporting activity with persons of the opposite birth sex, if it is necessary to do so because their participation would create a competitive advantage or disadvantage, or would potentially endanger their own safety or that of other participants. Where these factors do not apply, the exception cannot be relied on and any restrictions on their participation will be unlawful.
We think this is wrong in law. It introduces uncertainty where there is none. The law allows female-only sport competitions. There is no provision in the law that requires an individualised case-by-case assessment of whether a particular male athlete is excluded by a rule that a category is female-only. A straightforward rule can be applied. Nor does the law support the idea that sports are sex-affected a lot or only a little.
The example the EHRC gives does not appear to relate to competitive sport at all but is of a training session for men and whether it can exclude a woman who identifies as a man.
“A boxing gym runs a weekly full-contact sparring session for men. A trans man wishes to join the session. The gym declines his request. This may be lawful if the gym can demonstrate that that there would be a genuine health and safety risk if he were allowed to join the session.”
In some sports women are able to compete or train with men. This is called an “open” category. It does not rely on the women claiming to be men.
A better example would involve a sports competition such as a running race and a trans-identifying male who wishes to compete as a woman. The example could point out that having a female category is lawful and a man who identifies as a woman (a “trans woman”) is not eligible because of not being female.
On sport it says organisations should consider whether an activity is “primarily competitive or social and recreational” and whether “elite or mass participation” when deciding whether to let men (referring to them as “trans women”) compete with women. It presents this as being “inclusion”. This is going both beyond and around the terms of the Equality Act. The Equality Act does not encourage general “inclusion” (such as adults in children’s services, men in women’s services or able-bodied people in benefits for disabled people): it allows for targeting where it is needed.
The example that it gives of a “women’s fun run” which allows in men who identify as women would lose protection against discrimination claims by other men who want to participate, since it is arbitrary discrimination to allow some men to participate but not others.
Stop promoting case-by-case assessment
The section on single-sex services should emphasise that the provision of single-sex and separate-sex services is lawful in many everyday situations.
The guidance states that “policies should also be applied flexibly and should consider where there are specific circumstances that may justify departure from the policy”. We think this is dangerous and opens the door to the suggestion that men can negotiate their way into women-only spaces.
The example it gives is:
“A sports centre may make an exception to their women-only swimming changing room policy to allow a young boy to accompany his mother.”
This is not an example of an ad-hoc exception to a policy, but a common operational policy such as “Females only over 8 years old. Accompanied infants of either sex under 8 may use these changing rooms.” This is a rule which can be explained clearly to all. The rule “This changing room is female only, but we apply that rule flexibly” is not.
The guidance tells service providers that they need to go through a complex decision-making process, balancing rights and interest, before deciding whether to exclude a man who identifies as a woman from a woman’s service (or vice versa). We do not think this guidance is workable or lawful.
If a formerly women’s service has a policy of flexibly allowing some men in (because of what they are wearing, or their pronouns, or something else…) then it needs to explain to women that it is not a female-only service. But if it has explained to women that they can expect some men in the service, it has lost its justification for excluding men at all, and it is not a lawful single-sex service.
The code of practice gives as an example of its case-by-case assessment approach a private nursing home which it says must consider the individual request of a man who wants to reside in the women-only wing of the nursing home. This is not possible. Moving the man into the women’s wing would make it a mixed-sex wing. The women have chosen to be in a women-only wing. The request that the man is making can simply not be accommodated in a “women-only” wing. The women in the home are not props who can be manipulated and lied to.
Unworkable advice makes life difficult for service providers, especially for the front-line workers who are expected to explain and enforce rules in spaces like sports-centre changing rooms. So it’s important to give feedback on the guidance, especially if you can offer examples from your own experience.
People and organisations must feel confident to say “no” to men trying to argue their way into women’s spaces. This has to start with the Equality and Human Rights Commission giving clear, simple guidance which recognises that you cannot provide a “single-sex service” while having a policy of letting in members of both sexes.