EHRC to issue guidance on single-sex and separate-sex services

Baroness Falkner, Chairwoman of the Equality and Human Rights Commission has told ministers that the body is acting on a request by MPs to issue hospitals, schools, prisons and private firms with “worked examples and guidance” that will “provide clarity … on the provision of single-sex services.” It is expected to issue the guidance early next year.

A Whitehall source told the Telegraph that “one of the biggest concerns of women’s groups is ensuring prisons, refuges, changing rooms and hospital wards are kept single sex.” The new guidance will be something that public and private sector bodies “can use to show they are adhering to the law.”

The news was warmly welcomed by attendees at the FiLiA Conference who, recorded a message together with Sex Matters‘ Executive Director Maya Forstater.

Sex Matters recently wrote to the EHRC to encourage them to include providing guidance on single sex services. Three crucial building blocks for their guidance are:

1. Clarification that the protected characteristic “gender reassignment” does not mean that someone’s sex has changed.
2. Recognition that people should not be discriminated against or harassed for their beliefs on sex and gender (including by forcing them to pretend that a mixed-sex situation is single sex).
3. Recognition that service providers should have clearly expressed rules and policies about which services are single sex and which are open to members of both sexes, in order to have clear expectations and treat everyone with respect.

In general this means:

• Service providers that only provide mixed-sex facilities  should consider whether this discriminates against groups of users with protected characteristics, in particular women and girls, and those with religious or other beliefs.
• Service providers that only provide separate-sex facilities should consider whether this results in discrimination against people with the protected characteristic of gender reassignment.
• Service providers that provide specialist single-sex services, including for example cervical-smear test clinics, menopause counselling or rape-crisis centres and women’s refuges, are allowed to provide services on the basis of biological sex and not self-identified gender or legal sex.

The guidance should be consistent and address all single sex exceptions in the Equality Act.

1. Separate and single sex services (Schedule 3 Sections 26, 27 and 28)
2. Sport: (Section 195)
3. Occupational requirement (Schedule 9)
4. Communal accommodation (Schedule 23)
5. Charities (Section 193)
6. Associations (Schedule 16)
7. Schools (Schedule 11) 
8. Political parties (Part 7)

One of the critical things that the guidance will need to tackle is the EHRC’s existing guidance that service providers should allow some people to access opposite sex services, and exclude others on an individualised ‘case by case’ basis. We think this policy is unworkable. The recent guidance from the Sports Council Equality Group also came to this conclusion.

Sex Matters has produced a policy briefing on the single sex exceptions and on the specific rules for single sex hospital wards.