On 4 April 2022, the Equality and Human Rights Commission (EHRC) published guidance for service providers operating a separate or single-sex service in England, Scotland and Wales and their approach to trans people’s use of their services.
Separate or single-sex service providers are those who provide a service (a) only to one sex, (b) separately to each sex, or (c) differently to people of each sex. Examples of such services include single-sex toilets, changing rooms or hospital wards.
Under the Equality Act 2010 (EA), individuals must not be discriminated against on the basis of their sex or gender reassignment. Despite this, there are some limited circumstances in which businesses are able to exclude, modify or limit access to certain individuals, provided that this is justified as a proportionate means of achieving a legitimate aim. Though the EHRC guidance considers the circumstances in which these exceptions apply to the exclusion of trans people by separate or single-sex service providers, it is also useful for employers, particularly with regards to drafting policies relating to the use by trans employees of services and access arrangements for such employees.
What is deemed proportionate and legitimate is dependent on the facts and, though the EHRC guidance sets out general points to bear in mind, circumstances will be considered on a case-by-case basis. The rights and needs of trans people should be balanced against the rights and needs of others. In many situations, there will be no conflict between these interests and no need for exclusions. Where there is a potential conflict, the nature of the service and the reason a separate or single-sex service is needed must be taken into account.
In order to make sure that all people are treated fairly, with dignity and respect, both service providers and employers are advised to maintain an audit trail of all decision-making. They should also have an internal policy on how services are provided to trans people, and in what circumstances they would consider departing from that policy.
The EHRC guidance gives practical examples of when it could be lawful to exclude trans people from single-sex services. These include, amongst other things, services provided to survivors of domestic abuse or single-sex changing rooms, where there may be a concern for the safety and dignity of specific individuals. The EHRC guidance goes on to suggest that alternative gender-neutral services should be considered in such circumstances.
Though the guidance has sparked some debate, with LGBTQ+ activists stating that it seems to go against the core principle of inclusivity in the EA, it is important to bear in mind that the guidance is intended to be a tool to assist in complying with the law. Before taking the difficult decision to exclude trans people from accessing certain services, businesses should always remember that their aim should be inclusivity so anything which departs from that aim needs to be considered carefully, taking account of whether the reasons for the departure outweigh the discriminatory effects and whether there are practical alternatives which would avoid excluding trans people (or anyone else) from their services.