EHRC consultation: justification

This is the fourth in a series of posts focusing in detail on individual parts of the Equality and Human Rights Commission’s draft code of practice for service providers, associations and public bodies (read our full response to the consultation).

Chapter 13 of the guidance covers exceptions. The EHRC introduced a new section on justification for separate-sex and single-sex services. This is about when it is legal to provide a separate-sex or single-sex service in the first place.

It says:

When providing a separate or single-sex service, a service provider (including a person providing a service in the exercise of public functions) must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim.

It goes on to say:

The service provider should consider whether the disadvantage to trans people, and any other people who may be disadvantaged, outweighs the benefits of achieving the legitimate aim. They should also consider whether there is a less intrusive option than excluding trans people which would be proportionate 

13.3.9 Having carried out this balancing exercise, the service provider may conclude that arrangements or adaptations can be made to meet the needs of all service users, or that it remains proportionate to maintain only a separate or single-sex service.

It includes a lot of examples. We think this section is too long and complicated. It should be much shorter and simpler. 

The aim of this section should be to make clear that everyday single-sex and separate-sex services such as toilets in pubs and cafes, changing rooms in gyms and hospital wards, as well as specialist women’s services like rape crisis centres, are often justified, are straightforward to implement and defend legally, MUST operate on the basis of biological sex and do not require detailed up-front justification, individualised case-by-case assessment or complex legal expertise. 

This was the most legally dense part of our response to the consultation and included citations to cases. 

The guidance needs to be based on the law. But it should not imply that it is legally difficult to operate a single-sex service. 

Do you need a human-rights lawyer on call to run a pub?

The guidance should make clear that service providers are not operating on a legal knife-edge when they decide to have single-sex or separate-sex facilities, or a combination of both. In many everyday situations there will be a variety of lawful ways to provide facilities and services. 

Cadman v Health and Safety Executive [2004] IRLR 971 CA is helpful. It found that there is no rule of law that justification (in relation to indirect discrimination) must have consciously and contemporaneously featured in the decision-making processes of the duty-bearer.

As Sex Matters said in our response to the October 2024 consultation, where the guidance introduces the objective justification test (“proportionate means to a legitimate aim”), it should keep it simple.

We think it is legally incorrect to present justification as requiring that duty-bearers apply a four-part human-rights proportionality test that comes from a Supreme Court case called “Bank Mellat” (Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700). This case concerned the lawfulness of the UK Treasury’s interference with an international bank’s financial dealings, based on whether or not it was a proportionate and rational response to the purpose of hindering Iran’s nuclear development.

The Bank Mellat test:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;

(2) whether the measure is rationally connected to the objective;

(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and

(4) whether the measure’s contribution to the objective outweighs the effects on the rights of those to whom it applies.

The single-sex exceptions in the Equality Act concern the day-to-day operations of duty-bearers, which include small shops, cafes, high-street services, nursery schools, community halls and sports clubs.

We don’t think such duty-bearers need to do a human-rights balancing test when deciding what kind of toilets or changing rooms to have. Slotting the shop proprietor into the role of the Treasury in the Bank Mellat case is using a rocket-propelled grenade to crack a nut. 

Starting from the Sex Discrimination Act 1975, legislators included broad and simple exceptions in the law to draw lines around familiar single-sex and separate-sex services, in order to avoid them becoming prohibited when sex discrimination became unlawful. 

The Equality Act does not expect operators of ordinary, everyday services to become experts in human-rights law or to apply “balancing tests” in order to provide separate toilets, changing rooms or showers for women and men.

The more applicable authority than Bank Mellat is Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16, which is a different Supreme Court case concerning lawful age discrimination by employers (lawful age-based rules). This situation is much closer to single-sex services (that is, lawful sex-based rules).

The approach that should be applied to objective justification in the Equality Act is the simpler test in Seldon, and in Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, which says:

“To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”

However, in the case of single-sex and separate-sex services the test is even simpler. In Seldon, the Supreme Court held that direct discrimination can be justified only by an aim that is in the public interest and consistent with the social policy of the state. It was up to the employer to say what the aim was. In the case of single-sex and separate-sex services, a wide range of legitimate aims have already been set out by the legislature in Schedule 3 Part 7. These relate to different needs of women and men, the effectiveness of providing services and treatment in hospitals, bodily privacy, religious practices and so on.

The EAT said in Seldon, with which the Court of Appeal and the Supreme Court agreed: 

“Typically, legitimate aims can only be achieved by the application of general rules or policies. The adoption of a general rule, as opposed to a series of responses to particular individual circumstances, is itself an important element in the justification. It is what gives predictability and consistency, itself an important virtue.”

Rules and standards keep it simple

In most situations where service providers are providing facilities such as toilets (which are covered by building regulations), or specialist services such as those that follow the Rape Crisis National Service Standards), they should not have to reinvent the wheel each time in considering the benefits of a single-sex service, since they are implementing general rules and policy decisions that have been established at a higher level than the individual organisation. 

For example, the UK has ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention). Its purpose includes ensuring that countries have robust “policies and measures for the protection of and assistance to all victims of violence against women and domestic violence”. This includes providing women’s refugees and rape crisis centres that are for women only. 

In the Domestic Abuse Act 2021, the government introduced a statutory duty on tier 1 local authorities in England to provide support for victims of domestic abuse and their children within safe accommodation. The government published statutory guidance which says such support must be for men only or women only, and must meet nationally recognised quality standards for domestic-abuse support services. 

Service providers are commissioned to provide a service to meet these standards (which are consistent with the legitimate aims in the Equality Act). The individual service providers do not need to undertake a human-rights balancing exercise questioning whether it is legitimate for them to provide a single-sex service at all. 

Wrongly importing the Bank Mellat test and its language, such as for a “less intrusive option”, makes it appear legally difficult to operate ordinary single-sex services. It undermines the predictability and workability of the Equality Act.

Importing the Bank Mellat human-rights test has led the EHRC to invent stronger justification than the Equality Act requires for single-sex and separate-sex services, and make it seem like such justification is difficult to provide. 

Section 13.3.4 of the consultation draft introduces new conditions not found in the Act. It says that when considering the benefits of offering a separate-sex or single-sex service, the service provider:

“should think about whether women’s safety, privacy and / or dignity would be at risk in the service if it was shared with men.” 

It directs the service provider to consider a specified range of factors not required on the face of the Equality Act, such as whether women are likely to be in a state of undress, whether there will be limited ability for women to leave or to choose an alternative service, whether the service is provided a result of or connected with male violence against women, and whether the physical differences between men and women are relevant to the experience of the service and put women at a particular disadvantage.

These are indeed some of the reasons why women may prefer and benefit from separate-sex facilities. But they are not found in Schedule 3 Part 7 of the act, which offers simpler, everyday reasons why single-sex and separate-sex services can be offered, and is neutral between male-only and female-only services. 

The Equality Act provides for many situations where services may lawfully be provided either jointly or separately. These justifications all meet public-policy goals (which are included in the act). It does not say that the service provider needs to have considered an imminent risk to privacy, safety or dignity when choosing between one design choice and another. Separate-sex facilities can be provided where they are more efficient (for example, the reason for providing urinals is that they are faster to use and easier to clean, and making them available to men means the toilets women use will be cleaner).

Single-sex services for men are lawful under the Equality Act, even though men’s safety is not at risk when sharing with women.