Failed Challenge to Trans Equality Guidance around Single Sex Spaces

by Mallory Moore

Sun May 9, 2021 · 2811 words · 15 min

On Thursday, the Authentic Equity Alliance (AEA) had a permissions hearing for an attempted judicial review to challenge sections of the Commission for Equality and Human Rights' Services Code of Practice1 on the Equality Act. The purpose of this challenge was to overturn parts of the statutory guidance which advise that exclusion of trans people from services according to our acquired gender ought to be as limited as possible and only where necessary and proportionate. Members of Trans Safety Network observed the hearing and present an account of the case in this article.

Where we have summarised parts of the EHRC code of practice, this is to help break down for readers roughly what is at stake for trans people, and is not intended in any way as legal advice. Additionally, any errors in this article due to transcription during the hearing are our own, and we will correct these as soon as possible. If you identify a mistake, please email info@transsafety.network so we can correct this.

Background to the case

According to the UK Courts and Tribunals Judiciary2, "a judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body". In this particular case, AEA (run by LGB Alliance founder and trustee Ann Sinnott) were claiming that the Commission for Equality and Human Rights (EHRC) were publishing guidance in breach of the Equality Act 20103. The LGB Alliance who were controversially given charitable status recently were helping raise money for the case right up to the day before the hearing4, and the CrowdJustice for this lost case is still gaining donations despite its failure in court and having raised over £90k ahead of the one-day hearing5.

The Equality Act (aka the EA2010) is a wide ranging piece of legislation which was brought in over a decade ago in order to unify existing equality legislation (such as the Sex Discrimination Act, the Race Relations Act, the Disability Discrimination Act and so on). We won't go into too much detail about the act itself because detailed legal analysis is beyond the scope of our reporting here.

Authentic Equity Alliance are a diversity training company who especially focus on providing training to companies about their rights around single sex exemptions, who at the time of writing still claim on their website that the Commission for Equality and human Rights are advising in opposition to the law.

The hearing on Thursday, May 6th, was a "Permissions Hearing" - ordered regarding the case in order to decide whether there was an arguable case to be heard on the issues raised with a reasonable prospect of success. This is a stage that happens before a full judicial review, and has a lower threshold for success than an actual judicial review hearing.

The sections in the Code of Practice that were targeted were §13.57-13.60. These govern how the equality act balances discrimination under Gender Reassignment protections, and "Single Sex Services". In short, these sections indicate that while excluding trans people from single sex services is sometimes legal,

  • service providers must be aware that it is their responsibility to ensure that exclusion is proportionate to a legitimate aim,
  • generally service providers ought to treat trans people respectfully for the gender they present as where possible including e.g. using appropriate pronouns or the preferred name, as well as giving an example of allowing trans women to use female changing rooms where there are separate cubicles ensuring that dignity/privacy issues don't arise,
  • provisions should be made for trans people not to be excluded from e.g. health services applying to our birth sex when we need them (such as breast cancer screening for trans men),
  • where a trans person passes they should normally be treated according to their "acquired" gender unless there are strong reasons not to,
  • any allowable exceptions from prohibitions against discrimination of trans people need to be used in as limited a way as possible, and only to the extent that they there is no less discriminatory way to achieve the same objective.

We have included a copy of the specific paragraphs at the end of this article.

Although the word "transsexual" is used frequently in the guidance, this term may cover a wider range of trans people than that terminology normally denotes. In particular, a recent Equality Act case, found that there were some protections for non-binary or gender-fluid people under the protected characteristic of Gender Reassignment6. How this interacts with the sections of the Code of Practice under attack is beyond the scope of this article.

The claims

Drawing from section 4 the AEA Skeleton Argument7, the claims made by Ann Sinnott were in short:

  • The EHRC code of practice "fails to appreciate that there is a relevant distinction" when applying single sex space exemptions to trans people between trans people with a Gender Recognition Certificate (GRC), and those who did not have one.
  • It was wrong to claim that exceptional circumstances or strong reasons were needed to discriminate against trans women using women's services.
  • That discrimination based on sex is justified in the Equality Act, and therefore excluding trans women without a GRC from women's single-sex services on the basis that they are legally male is not direct discrimination because the discrimination is based on sex rather than on gender reassignment.
  • That in cases where a trans woman has a GRC but has not undergone genital reconstruction surgery, it may still normally be reasonable to exclude them from single sex services such as women's changing rooms for the sake of dignity and privacy of women using the service.

The effect of these claims if accepted would be to normalise exclusion of trans women from women's single-sex services in the general case, in particular trans women without both a gender recognition certificate and having undergone genital reconstructive surgery.

In the hearing, AEA argued that the paragraphs of guidance under scrutiny risked seriously undermining protection of women's rights, with claims that this was particularly relevant to Muslim women (a point AEA's barrister Jeremy Hyam QC did not elaborate on further, other than to raise "women of a particular religious persuasion" again later in the case).

Arguments were made in court that all trans women without a GRC ought to be typically excluded from single sex services as a matter of course.

AEA made points arguing that this exclusion was necessary to meet the needs of women with PTSD, to which the judge, Mr Justice Henshaw responded, pointing out that according to the EHRC's guidance, if providers have to exclude trans women to accommodate the needs of women with PTSD that is what the specified exceptions which allow for trans exclusion were for.

Another claim made by AEA was that for the purposes of the Equality Act, the EHRC had effectively treated trans women as the sex they've acquired without gender recognition - creating a new feature not present in the Equality Act itself. It was put to the court that gender reassignment is an extremely broad category in law - that it can be merely a state of mind once someone decides to undertake a course of gender reassignment - and that therefore this is an unreasonable imposition on women and girls privacy. J. Henshaw responded questioning this, pointing out that the idea these protections apply only to those with a GRC threatens to undermine the entire idea of a Gender Reassignment protection altogether, asking at one point "Does that mean you're saying it will always be permissible to treat a transsexual woman as a biological male?"

Further issues were raised by AEA, around the area of women's refuges and the issue of guidance that exclusion of trans women should be "exceptional", when it is legal under the equality act to exclude trans women from a women's refuge.

The defence

We'll briefly go through the arguments made in court for the defence, but have included the skeleton argument for the defence provided at the hearing in our references.8

The EHRC responded to each of the points above. This included:

  • That guidance to treat trans people in the role they present as did not necessarily mean never excluding them - that instead this was intended to encourage service providers to respect the acquired gender of trans people (e.g. using preferred pronouns and name) as not doing so is an obvious detriment against a protected characteristic for no purpose.
  • That the guidance explicitly says that exclusions are permissible when necessary and proportionate, but that this guidance is aimed at helping service providers understand their obligations to service users and consequently it was helpful to advise that discrimination against trans people should not be the norm.
  • That some women's refuges have policies excluding trans women, and that others include trans women, and it is clear that both policies are possible with the guidance as it stands so the guidance is not preventing these services from operating whichever policy suits their needs in practice.
  • That the fact that this case is being taken as a judicial review against the EHRC rather than to a specific service for their failure to balance their duties under the equality act is proof of the fact that this was an abstract and theoretical point of law.
  • That because of this, and the lengthy process of consultation with stakeholder groups (including women's services, trade unions and others) both before and after the Equality Act coming into place, the EHRC hold an expert position on both the needs of service providers with respect to the EA2010 and how best to advise them, and that the court shouldn't intervene unless there was a concrete instance where the guidance had gone wrong in some way (which AEA could not show).
  • That additionally because there was no clear error in law that had been made by EHRC this case was not even arguable.

The bulk of their argument on attempted points of law was that AEA had failed to take into account "indirect discrimination". They argued that while they do take into account the difference in law between a trans woman with or without a GRC, a trans woman without a GRC may have been transitioned for many many years without a GRC, and to argue that it is arbitrarily acceptable to exclude her from single sex spaces for women under the equality act simply on the basis that she is male can not be right, as it constitutes indirect gender reassignment discrimination forcing her to potentially out herself or undergo humiliation/indignity using men's services as a woman.

In the response the AEA argued that the guidance to treat trans people in their acquired gender role rather than according to legal sex was a clear error in law - that a single sex service which permits trans people according to acquired gender immediately becomes a mixed sex service by default. These were arguing from the idea of what a single-sex service is, rather than what a single-sex service is seeking to protect, and that discrimination against men in any case is obviously justified for the sake of single sex services.

At this point the judge responded to the AEA reminding them this is about the justifications of discrimination as being proportionate to a legitimate aim. He recounted the paradigm example of the way that a workplace may expect employees to work full time, but must also balance that with consideration of the discriminatory impact this may have on women in particular. He asked:

J. Henshaw: "Why does it justify the discrimination against transsexual women on the basis that discrimination against men is justified?"

AEA: "Because they are men. That maleness persists with a person who is a [trans woman without a GRC]."

J. Henshaw: "But that leaves the protected characteristic entirely out of the equation."

AEA: "There is no direct discrimination because it's about sex, and there's no indirect discrimination because the discrimination is on the basis that they are male."

J. Henshaw: "But you are ignoring the protected characteristic?"

AEA: "All single sex services become mixed sex as soon as a single transsexual is permitted."

Outcome

After twenty minute recess the judge returned, refusing permission for a judicial review. The reasoning for rejecting the case largely retraced the arguments set out by the defence. Trans Safety Network are waiting for a response for our request for a copy of the final ruling, as there were many details of this we were unable to transcribe.

A particular sticking point included for the sake of the ruling laying out a second time, that indirect discrimination is not about the discrimination in the intention of the service provider but about the discrimination that indirectly affects the trans person because they are trans whether the service provider intended the discrimination to exclude trans people or not.

The contested guidance in full

  • 13.57 - If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate.

  • 13.58 - The intention is to ensure that the transsexual person is treated in a way that best meets their needs. Service providers need to be aware that transsexual people may need access to services relating to their birth sex which are otherwise provided only to people of that sex. For example, a transsexual man may need access to breast screening or gynaecological services. In order to protect the privacy of all users, it is recommended that the service provider should discuss with any transsexual service users the best way to enable them to have access to the service.

Example: A clothes shop has separate changing areas for male and female customers to try on garments in cubicles. The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles.

  • 13.59 - Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.

  • 13.60 - As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances. Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service. To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice. Also, the provider will need to show that a less discriminatory way to achieve the objective was not available.


EHRC: Services, public functions and associations - Statutory Code of Practice

References: