A template for clear guidance

The single-sex and separate-sex service exceptions in the Equality Act should be straightforward and easy to apply. 

But they have become entangled in misunderstanding and conflict, complicated by the desire of people who identify as transgender to use opposite-sex services, and by accusations of “transphobia” that have made organisations confused, and fearful of communicating and enforcing clear, fair rules. 

For years organisations, including the Equality and Human Rights Commission, gave advice that services should operate on a “trans inclusive” basis, allowing men who identify as women to use women’s spaces and services, and women who identify as men to use men’s spaces and services, and saying that such people could only be excluded from these services on a “case-by-case” basis. 

The recent judgment by the Supreme Court in the case of For Women Scotland v The Scottish Ministers made clear that this is not supported in law. The EHRC is therefore updating its code of practice for service providers. 

Organisations are already required to follow the law. Today we are publishing guidance for service providers to help them to understand and follow the law. 

It is simple

We have taken care to go through the different situations, such as single-sex, separate-sex, joint and combination services, and provide the underlying legal arguments for when these are lawful, and where there are risks and other factors to consider, with reference to legislation and case law. But the principles for lawfully providing a single-sex or separate-sex service are simple. 

✅	There are many commonplace situations where it is lawful to provide a single-sex or separate-sex service.
✅	Offering a unisex (“gender-neutral”) option can be helpful if services are also provided for both sexes.
✅	Clear rules are helpful. Ambiguous rules often lead to sex discrimination, harassment, conflict and legal liability.
✅	These rules must operate on the basis of biological sex. Everyone should be expected to comply with clear rules.
✅	It is lawful to ask and record service users’ sex where this is necessary to provide a service effectively, in accordance with data protection.
❌	Not providing separate-sex services can be sex discrimination.
❌	People who identify as transgender are not entitled to access services provided for the opposite sex.

Our guidance seeks to take the mystery and fear out of providing single-sex services, including recording people’s sex accurately wherever that information is needed. 

The interests of transgender people should be considered alongside others when formulating and assessing policies. It is often possible to provide a gender-neutral option, and other people – such as fathers with young daughters, and disabled people with opposite-sex carers – also benefit from this. 

But it is not appropriate to allow transgender people to use services provided for members of the opposite sex. 

The Equality Act requires objective justification for a sex-based rule. Once this is met the provider can and should operate a blanket policy; they do not need to apply the test separately to every instance when the policy is applied (or to each individual it applies to). 

What about enforcement? 

Organisations that are providing single-sex or separate-sex services don’t need to panic about enforcement. Everyone knows their own sex and people should be expected to follow clearly expressed rules. If someone complains that the rules are being broken, this should be investigated and action should be taken. 

There are no “toilet police”, but organisations operate based on rules and policies. Managing health and safety and dealing with personal data are tasks that all organisations do routinely.

Service providers and security staff can operate on the basis of their own observations to protect propriety. There is no need to ask to see birth certificates or other evidence of sex. The evidence of their own eyes and ears is usually a sufficiently accurate guide, despite the possibility of an occasional mistake. 

Understanding and following rules to comply with the law and keep everyone safe should be part of organisations’ culture and their controls:

• Public bodies, including regulators and funders, should make clear that they expect organisations to comply with the Equality Act 2010. 
• Institutions should signal from the top that they respect the Equality Act and health and safety regulations, and expect compliance with sex-based rules. 
• If a service requires registration, it should ask for people to declare their sex whenever that information is needed, and explain what it is for and that it should be accurate. 
• Employers should make clear to their staff that they are expected to follow sex-based rules.
• People with formal ties to institutions, such as students at a university, members of a gym or patients at a hospital, should be made aware of this expectation. 
• Signage can be used to make expectations clear in more anonymous situations such as commercial public venues. 
• Policies should be clear; complaints and disciplinary procedures should be followed. 
• Other service providers should not refer someone they know to be male to a female-only service.
• Other service providers should not refer someone onwards to any service by providing information about that person’s sex that they know to be false.
• Public funding should not be provided to organisations that seek to undermine compliance with the Equality Act.