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. 

The post EHRC consultation: justification appeared first on Sex Matters.

Section 195 of the Equality Act concerns sport. This is covered in Chapter 13 of the Code of Practice. The Equality Act says at S195(1): 

“A person does not contravene this Act, so far as relating to sex, only by doing anything in relation to the participation of another as a competitor in a gender-affected activity.”

In other words, if a sport is “gender-affected” (that is, “a sport, game or other activity of a competitive nature in which the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other sex”) then restricting participation based on sex is lawful. 

Sport is almost universally organised by sex. Section 195 makes that lawful. This is not restricted to single-sex events. It also applies to mixed events with sex-based rules, such as mixed doubles in racquet sports and mixed pairs in figure skating, mixed-sex team sports that have rules requiring a minimum number of women in the team, and sex-based record-keeping in parallel sports such as fell running. 

The draft guidance says: “the law on the interpretation of s.195(1) is not settled and there is therefore uncertainty as to how this provision applies.” 

This is baseless. In fact s.195(1) is quite clear. The idea that the law is “not settled” seems to be based on the EHRC’s previous wrong interpretation that it may be gender-reassignment discrimination to run a female-only team because it excludes men with the protected characteristic of gender reassignment. 

The EHRC continues to advance this approach in the draft guidance. It says:

13.1.6 In the context of a gender-affected activity the Act allows trans people to be excluded from an event or treated differently, which would otherwise constitute unlawful gender reassignment discrimination, when necessary for reasons of safety or fair competition. If it is not necessary for these reasons, it is likely to be unlawful to exclude trans people.

13.1.7 Consequently, if a person is organising single-sex or separate-sex events for men and women in a gender-affected activity, they should consider their approach to trans competitors’ access to the service (s.19 and s.195(2)). 

This makes no sense in light of the Supreme Court’s ruling in For Women Scotland, which says that “trans women” are men and that the provisions on sport are plainly predicated on biological sex. 

As the Supreme Court said at paragraph 236: 

“a women’s boxing competition organiser could refuse to admit all men, including trans women regardless of their GRC status. This would be covered by the sex discrimination exception in section 195(1).” 

The code should be rewritten based on a clear understanding of the protected characteristic of sex, which aligns with the physical characteristics of the bodies that play sport. All men are male (including those who identify as transwomen) and all women are female (including those who identify as transmen), and these are biological (physiological) characteristics. 

Section 195(2) of the Equality Act says:

(2) A person does not contravene section 29, 33, 34 or 35, so far as relating to gender reassignment, only by doing anything in relation to the participation of a transsexual person as a competitor in a gender-affected activity if it is necessary to do so to secure in relation to the activity—

a) fair competition, or

b) the safety of competitors.

But this does not mean that a person organising a sporting event for women “should consider their approach to trans competitors’ access to the service”, as the EHRC draft code says. 

If the organiser excludes a biological female who has taken testosterone from the female division, this would be permitted by s.195(2). As the Supreme Court says: 

“It is here that the gender reassignment exception would be available to ensure that the exclusion is not unlawful, whether as direct or indirect gender reassignment discrimination.”

Large parts of the section on sport are misguided, and overly complex for a topic rendered quite simple by the Supreme Court’s clarification of the Equality Act. 

Someone organising a female-only sport competition is not “making a decision” to restrict the participation of transgender males on the grounds of gender reassignment. They are simply organising a sports competition which has a qualifying condition that does not include any males. 

The guidance says at 13.1.18:

“Given the physiological differences between men and women, it will often be necessary for organisations to develop general policies to guide and inform their decision making in this area.”

This disregards the Supreme Court’s conclusion that it is the physiological differences between men and women that make them men and women, and which in turn create the gateway conditions for establishing sex-based rules in so-called “gender-affected sports”. 

The fact is, the mere existence of a male and female category shows that most sporting bodies have already done this, and have been doing so for many years. As the Supreme Court notes, there is not necessarily any physiological difference between “trans women” and other men. The starting point for any policy related to trans individuals in sport must therefore be that they can compete only in the sex category in which they are entitled to compete. 

Testosterone suppression? 

The EHRC guidance suggests that organisations should have policies to consider allowing men to play in women’s sports based on factors including:

“whether such competitive advantage can be sufficiently reduced through medical intervention, such as drugs to reduce levels of testosterone, to make the competition fair.”

These are interventions with serious health consequences, up to and including sterilisation. Neither the Equality Act nor the previous guidance mention testosterone suppression by medical or surgical means as a gateway condition for sport. This recommendation is outside the scope of the Equality Act and should be removed. 

As the Supreme Court noted, Parliament has decided that the criteria for having the protected characteristic of gender reassignment do not include hormone treatment or surgery. The European Court of Human Rights concluded in the case of AP Garcon and Nicot v France that a law requiring treatment that amounted to sterilisation in order to obtain administrative gender recognition had been a violation of Article 8 (right to respect for private life). Requiring treatment that is likely to impair sexual function and fertility, and which might lead to sterilisation, has major human-rights implications. 

To make such treatment a condition of competing in a sport competition is unlikely to be proportionate. In any case, the EHRC is proposing it as a condition to enable certain men to access the category designated for women; there is no condition which can legitimise this.

There is already a sport category (the male – or open – category) in which men (including men who identify as “trans women”) are qualified to compete, and where the Equality Act provides them with protection against discrimination. 

They are not excluded from sport. They are included in the male category. 

The post EHRC consultation: sport appeared first on Sex Matters.

In chapter 2 of the draft code of practice, the EHRC has proposed introducing new content on asking “about sex at birth”. We strongly disagree with this content and have recommended that the whole section be cut. 

The placement of this section in the numbering scheme puts it before the protected characteristic of sex is introduced, rather than after it. This is irrational and suggests that asking about “birth sex” is something different to asking about or recording “sex” and expecting an honest answer. This section also uses the concepts of discrimination, indirect discrimination and harassment before they are introduced in the guidance. This is likely to confuse readers and shows that the section is an inadequate sticking plaster for the longstanding data mess.

Like much of the proposed statutory guidance on this topic, the code of practice falls into the trap of framing the advice as how a single staff member should respond to a trans service user, rather than what general rules and processes are lawful for an organisation.

It says:

• “It is important to be aware that some people, including some trans or gender non-conforming people, may find it distressing to be asked about their birth sex. Any necessary request about birth sex should be made sensitively, taking this into account.”
• “Discrimination or harassment could occur if, for example, individuals are asked about their birth sex in a way which may require them to disclose this information in public, or if the language or manner of a request is rude, combative or offensive.”
• “If there is genuine concern about the accuracy of the response to a question about birth sex, then a birth certificate could be requested… However, it should be noted that a birth certificate may not be a definitive indication of birth sex.” 
• “In the unlikely event that it is decided that further enquiries are needed, such as confirmation as to whether a person has a GRC, then any additional requests should be made in a proportionate way which is discreet and sensitive.”

It gives the example: 

“A trans woman goes to the office of a local support group and makes enquiries with the receptionist about the group counselling sessions they offer. Based on the needs of its service users, the group provides different sessions that are single-sex or mixed-sex. The receptionist reasonably thinks that the trans woman is a biological male and, as there are some other people waiting in the office, asks her to come into a side room to get more details about the support she is looking for. When they are in private, the receptionist explains the different group sessions that are offered and asks the trans woman what her birth sex is. When she confirms her birth sex, the receptionist provides her with the details of the mixed-sex groups she could attend.” 

This section does not align with the Equality Act or the Data Protection Act and is not supported by case law. We think it is misguided and unworkable – and that the example is dangerous. It is based on the discredited “case by case” model that has informed EHRC’s track record of getting the law wrong on this issue for the past 15 years.

This approach is fundamentally flawed. It should tell service providers to set simple, lawful policies (record personal information accurately when the information is needed; consider making the question voluntary) and expect the few thousand trans-identifying individuals in the country to follow the rules like everyone else. Instead it expects businesses and the public sector to spend millions of pounds training all their customer-facing staff to try to guess who is trans and treat them differently by applying complex human-rights law principles. This is a recipe for more bad training and legal liability.

There is no particular provision in the Equality Act against recording sex data, and the advice should be simple: follow ordinary data-protection principles.

What the guidance gets right is that whenever organisations record personal information this can interfere with people’s human rights under Article 8 of the European Convention on Human Rights, which protects private and family life.

“Therefore, care should be taken, particularly by public authorities, that this is only done where necessary and justified.”

But what it gets wrong is thinking that this test of whether it is necessary and proportionate to record whether service users are male or female needs to be applied differently if the person might be trans. 

Apply ordinary rules 

Every piece of the EHRC guidance needs to be able to be applied by a large institution through a lawful policy.

In many routine situations organisations collect and record data on sex, along with other information such as a client’s name, date of birth and address. Examples include when someone registers for a service such as joining a gym, or when they get health or personal care. In other situations, such as signing up for a food-delivery service or a social-media account, customers are not asked to state their sex when they register (there might be a field for Mr/Ms but these are typically voluntary and don’t have to align with sex). Taking personal information is often done online, through a form or by drawing information from existing records or referral from another organisation. Once the information is collected it is included in a database. 

Collecting, recording or sharing any personal data in this way engages Article 8 and must be done as a proportionate means to a legitimate aim, and in line with data protection. This needs to be thought about when the database and form are designed, not on the fly by a receptionist.

The emphasis on asking the question sensitively is misplaced. Of course in general people should not be asked for personal information in a way that is combative or rude. But it is impractical to tell service providers to try to guess that a particular individual might be sensitive about their sex being recorded.

In order for the service provider (either staff members or a computer) to treat a transgender person’s data differently they would need to know (and be able to record) that they are transgender. This means recording MORE sensitive data about them, not LESS. 

A person who feels sensitive about sharing any particular piece of information may be able to respond “prefer not to say”, or to skip a question if the data field is not mandatory. 

The example is dangerous

The example of a “trans woman” going to the office of a local support group and being taken into a side room by the receptionist is particularly bad and shows that the case-by-case approach is dangerous and unworkable.

It suggests that rather than the organisation setting up systems to collect accurate information in a way that is compliant with data-protection principles, an individual receptionist should adopt an ad-hoc workaround that involves making assumptions based on a service user’s appearance.

The EHRC suggests that the receptionist (who is likely to be a woman) should respond to the suspicion that an individual might lie about their sex by leaving the reception unattended with people in the waiting area, and going into a side room with the person she suspects is a man, and who may well respond badly to being asked to confirm that he is a man. The risks of doing this are obscured by referring to the man as “she” in the example. 

The entire thinking behind this example is wrong. If the service provider offers mixed-sex and single-sex services, it should make this clear in all communications about its services – online, in leaflets and in person. Clients all know what sex they are, and should not try to attend services which are not intended for them. The risk that people (such as the potential client in the example) will try to access services illegitimately should be assessed when developing the service, and the service should have protocols that mitigate these risks, such as putting explanations of why they expect accurate responses into online forms, and screening new clients on the phone to make sure that they understand the service, and the expectations of their conduct.

What does the case law say?

The practical difficulty of trying to keep a person’s sex data private by marking it as sensitive, and the legal implications of Article 8, are explored in R (on the application of C) (Appellant) v Secretary of State for Work and Pensions (Respondent) [2017] UKSC 72 and in Croft v Royal Mail [2003] UKCA. Both found that it is not a breach of Article 8 or anti-discrimination law to ask for and record people’s sex or previous names wherever that information is generally needed. 

Pemberton v Inwood [2018] EWCA Civ 564 concludes in general: 

“If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive.”

It is not a cause for reasonable offence for an organisation to ask for and record sex, where it is needed. 

A recent European Court of Justice case, Mousse v Commission nationale de l’informatique et des libertés (CNIL) and SNCF Connect, found that it was a breach of Article 8 for the French rail company SNCF to require ticket buyers to be recorded as Monsieur or Madame because the information was not needed. This does not mean it would be a breach for a gym, sports association or healthcare provider to collect sex data, or for any organisation to collect sex data using a voluntary question or data field.

While equality monitoring is not the only reason for recording sex, the Supreme Court in FWS made clear (at paragraph 239) that the public-sector equality duty requires data collection on women and men, not on the incoherent groups of “women including transgender women” and “men including transgender men”.

There is a data mess

The EHRC should tell organisations to apply ordinary data-protection principles. But the problem is that many (including many public authorities) do not. They have spent the past decade and more mixing up sex and gender-identity data in the same field. This has been comprehensively documented in the Sullivan Review.

That the FWS judgment and the EHRC guidance have been greeted by trans activists angrily saying that they won’t follow rules, and that there is no way to prove their sex, highlights why the data mess is a problem. That problem is not solved by telling individual minimum-wage staff members to be more sensitive when dealing with people who think the rules don’t apply to them.

The EHRC tries to deal with the data mess by offering advice about birth certificates. This is wrong. Birth certificates are not forms of identification and (because of the 2004 Gender Recognition Act) are not accurate about sex. There are currently no reliable official sources of data on sex, as passports, driving licences and NHS data have not been kept accurate. None of this was done with any lawful basis.

Sorting out the data mess is not a job for the EHRC but for the government and the Information Commission. We think it should be addressed urgently by the Secretary of State for Science and Technology through the Digital Verification Services trust framework he is developing now; by the government acting on the Sullivan Review’s recommendations; and by the Information Commissioner enforcing data protection. 

The EHRC should cut this section, which unfairly passes the buck for dealing with the problem down to the lowest-paid workers, and saddles their employers with the bill for training them to do the impossible and then picking up the pieces when they fail.

We suggest that the chair of the EHRC, Kishwer Falkner, should instead write to the Minister for Women, the Secretary of State for Science and Technology and the Information Commissioner and tell them they must clear up the data mess.

The post EHRC consultation: asking about sex at birth appeared first on Sex Matters.

We are concerned that the EHRC is still promoting the discredited “case-by-case” approach. 

This is neither workable nor lawful. Schedule 3 Part 7 of the Equality Act sets out the circumstances where single-sex services are lawful, including that they must be a “proportionate means to a legitimate aim”. This is a legal test which is not a high bar to reach, but depends on having clear policies. 

In large organisations policies often have to be communicated across multiple sites and explained to staff and customers, on signage, websites and registration forms as well as verbally, on the phone and through training. Staff must be able to implement policies confidently and know what to do without having to make individual decisions. 

This is confirmed by the case of Seldon v Clarkson Wright and Jakes [2012] in which the Supreme Court endorsed the principle explained by the Employment Appeal Tribunal:

“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.” 

But the EHRC has a long history of straying from the law in order to shy away from simply saying no to trans-identifying individuals and their lobby groups: . 

• Although the original consultation draft of the 2010 Code of Practice stuck tightly to the law, after lobbying by transgender activist groups the version finally published in 2011 departed from this and said that service providers should treat “transgender people according to the gender role in which they present”. It also gave the unworkable guidance that any decision to exclude a transsexual person from an opposite-sex space should take place only after discussion with other users, but also while maintaining confidentiality and taking care to “avoid a decision based on ignorance or prejudice”. This was wrong. 
• The EHRC defended this guidance in court in 2021, arguing that it “is correct in stating that excluding a trans-person from the service provided for their acquired gender will almost certainly be unlawful unless the service provider can show the exclusion is a ‘proportionate means of achieving a legitimate aim’…That is correct whether or not the trans person has a GRC.” This individualised approach turned out to be wrong. 
• Last year the EHRC published a draft updated code, which still argued that “if the justification for limiting or denying trans persons’ access to the single sex service for their acquired gender does not outweigh the potential discriminatory effects, it is likely to be unlawful to do so.” That was wrong (and failed to reference the judgment in FWS1). 
• In November 2024 the EHRC argued in the Supreme Court that “sex” in the Equality Act means “certified sex” and that the proper way to provide “single sex services” for women is to include males with a GRC within the group of “women” (with the possibility of then excluding some of them). This legal interpretation also turned out to be wrong. 

It is notable that while the Supreme Court has quashed the idea that sex is difficult to define, instead of going back to its earlier simplicity, the EHRC is now proposing to expand the code in a different way, namely by suggesting that single-sex services are fiendishly difficult to justify. 

We think that the current draft of the code is over-elaborate and leaves the door open to the idea that people who identify as transgender can aspire to use opposite-sex spaces. 

Rather than adding more detail to the code, we think a better approach would be to scale it back with fewer examples and greater simplicity and clarity, and with statements that clearly reflect statute or case law. 

The law can be summarised in a single paragraph: 

“In the Equality Act, men are male, women are female (s.11 EqA) This characteristic is biological and immutable (FWS1 and FWS2). Providing single and separate-sex services is lawful in a wide range of familiar situations (Schedule 3 Part 7 EqA). There are also other exceptions in relation to associations, sports, schools and so on. Having the protected characteristic of gender reassignment does not change a person’s sex or give that person the right to access opposite-sex services (FWS1 and FWS2). Transgender people are protected from discrimination in general (s.7 EqA), but not from discrimination in relation to single and separate-sex services, as long as the service provider’s conduct is a proportionate means to a legitimate aim (Schedule 3 paragraph 28 EqA). This requires clear rules (Seldon).”

Any guidance that says that a service provider can decide how to disapply a single-sex policy on a “case by case” basis, or suggests a high level of legal jeopardy when designing or operating separate-sex services, is unworkable and not in line with the law. 

You can read our whole submission here: 

Over the next few days we will be publishing the analysis on sport, data-collection, single-sex services, what “proportionate means to a legitimate aim” means, and what all of this means for enforcement of rules. 

We hope that other civil-society organisations (including those that disagree with us) will also publish their responses. 

The post The EHRC code of practice should stick to the law appeared first on Sex Matters.