ECHR Publishes Guidance on the Provision of Separate or Single-Sex Services to Trans People
The Equality and Human Rights Commission (EHRC) has published guidance for service providers of separate or single-sex services.
The ECHR published guidance on 4 April 2022 for service providers who wish to provide separate or single-sex services, containing advice on their approach to trans people's use of the services.
Separate-Sex and Single-Sex Services
Separate-sex providers supply services separately to each sex, or differently to people of each sex. Single-sex providers only provide services to one sex. This could include separate or single-sex toilets, domestic violence refuges, separate or single-sex changing rooms and hospital wards.
What Does the Equality Act Say?
The Equality Act 2010 (the Act) may allow for the provision of separate or single-sex services if specific exceptions apply. In order to provide such a service, a provider must show at least one of a number of defined statutory conditions apply, and further prove the limit or exclusion is a proportionate means of achieving a legitimate aim.
There are also limited circumstances where it is permitted under the Act to prevent, limit or modify trans people's access to a separate-sex or single-sex service. However, this can be unlawful if the service provider cannot show the action is a proportionate means of achieving a legitimate aim, whether the individual has a Gender Recognition Certificate or not.
What are the Statutory Conditions Service Providers Must Meet?
Separate-sex services can be provided if a joint service would be less effective, and it can be shown that providing separate services is a proportionate means of achieving a legitimate aim.
In order to provide a single-sex service, the provider must be able to show one of the specific conditions, for example, that only people of that gender need the service, or that providing the service to both sexes would be sufficiently ineffective. The full list of conditions is set out in the guidance.
What are Potential Legitimate Aims?
The guidance provides examples of 'legitimate aims', which could include reasons of privacy, decency, to prevent trauma or to protect health and safety. Providers must be able to demonstrate that providing a separate or single-sex service is a proportionate means of achieving the legitimate aim that has been identified.
Practical Considerations for Employers
The guidance emphasises the importance of documenting how the provision of a separate or single-sex service is a proportionate means of achieving a legitimate aim. Organisations should give thought to how to document not only the rationale behind any such decision, but also the evidence supporting the decision. This could be key in demonstrating the proportionality of a decision. It will not be enough to simply identify a legitimate aim.
The guidance notes that some service providers may find it helpful to have a policy in place setting out how their services are provided to trans people. Where such a policy is put in place, caution should be exercised in respect of how the policy is applied, in particular as it might sometimes be justified to depart from the policy in an individual case. Sufficient flexibility should be built into the policy in order to enable an organisation to modify the policy where required.