EHRC consultation on Code of Practice following legal definition of “woman”

Proposed changes to the Code of Practice

There is an updated definition of “legal sex” that applies across the Code of Practice and this says that for the purposes of the Act a person’s:

The changes being consulted on are in Chapters 2, 4, 5, 8, 12 and 13 of the Code of Practice. The changes include changes to definitions, explanations and many new examples. In some instances, the EHRC is looking for feedback only on a new or updated example included in a particular Chapter. In others, feedback is requested on updated content and examples.

Chapter 2

Chapter 2 explains who has rights under Part 3 (services and public functions) and Part 7 (associations) of the Act.

In the Code of Practice, a reference to a trans person is stated to be a reference to a person who has the protected characteristic of gender reassignment.

There is new content on:

• Gender Recognition Certificates – the Code of Practice reiterates the Supreme Court’s decision that a GRC does not change a person’s legal sex for the purposes of the Act. It also states that a person’s sex remains their biological sex which is referred to as “sex at birth” or “birth sex” in the Code of Practice. Chapter 2 also outlines what protections trans people have under the Act whether or not they have a GRC. Protection from discrimination would be based on the protected characteristics of gender reassignment or sex.
• Asking about sex at birth – the Code of Practice states that, if necessary, questions about birth sex should be asked sensitively. Such questions are more likely to be justified where they are necessary and proportionate to discharge legal obligations under the Act.
• Updated description of the protected characteristic of sexual orientation – the Code of Practice specifies that a person who is attracted to people of the same sex is either a lesbian woman or a gay man. Gender reassignment is a separate protected characteristic and unrelated to sexual orientation.

Chapter 4

Chapter 4 explains what the Act says about direct discrimination in the provision of services, the exercise of public functions and associations for all the protected characteristics covered by the Code of Practice.

There is a new example on sex discrimination by perception. There is also updated content about the pregnancy and maternity provisions in the Act. These apply on the basis of biological sex and accordingly, trans men are included in the protections against discrimination.

Chapter 5

Chapter 5 is about indirect discrimination and “objective justification”. There is a new example on sex discrimination and same disadvantage.

Chapter 8

Chapter 8 covers the three types of harassment under the Act – harassment related to a relevant protected characteristic, sexual harassment and less favourable treatment of people who reject or submit to harassment. There is an updated example on harassment related to sex.

Chapter 12

Chapter 12 explains how the Act applies to associations, explains what an association is and what is unlawful under the Act in relation to former, current and potential members, associates and guests. There is a new example on women-only associations.

Chapter 13

Chapter 13 explains the exceptions contained in the Act which permit conduct that would otherwise be unlawful. The most extensive changes to the Code of Practice are in Chapter 13 which is unsurprising because this Chapter covers:

• Competitive sport
• Separate and single-sex services for men and women
• Justification for separate and single-sex services
• Policies and exceptions for separate and single-sex services
• Separate or single-sex services in relation to gender reassignment
• Communal accommodation

Some of the key changes that the EHRC is consulting on include:

• Competitive sport – there is updated content that explains the circumstances when it may be lawful to exclude participation in competitive sporting events in relation to the protected characteristics of sex and gender reassignment. The updated content also states that:

The Code of Practice says that policies should be supported by a clear rationale and evidence base and guidance can be taken from sporting authorities. Relevant considerations may include whether there are safety risk factors because of physical contact between men and women and whether there are competitive advantages due to physical strength, stamina or physique.

• Separate and single-sex services for men and women – there is updated content to provide guidance on how separate or single-sex services can be provided for men and women. This also sets out when providing these services is likely to be lawful. The Act contains specific exceptions which allow services to be provided:
  • Separately and/or differently for women and men
  • Exclusively for women
  • Exclusively for men
  • To people of a particular age group (in certain circumstances)

Providing separate services for women and men, for example, is one of the exceptions. It is lawful to provide separate-sex services if a joint service for women and men would be less effective and providing the service separately to women and men is a proportionate means of achieving a legitimate aim.

Regarding single-sex services, this is another exception to sex discrimination if one of six conditions apply and providing the service on a single-sex basis is a proportionate means of achieving a legitimate aim. One condition is where only people of a particular sex need the service. Another condition is where a service provided jointly for both sexes is not sufficiently effective without providing an additional service exclusively for one sex. The Code of Practice lists the conditions and gives practical examples.

• Justification for separate and single-sex services – there is updated content on the need for service providers to demonstrate that providing a separate or single-sex service is a proportionate means of achieving a legitimate aim. The Code of Practice gives an example of a legitimate aim whereby providing a separate or single-sex service could be to ensure the safety of women or the privacy and dignity of women and/or men. It must be shown that providing the service only to one sex or separately to both sexes is a proportionate way to achieve the aim.

All potential service users should be considered. There should also be consideration as to whether there is a fair balance between the benefits of offering the service as a separate or single-sex service, the needs of those who are accessing it and the impact on those who are excluded from accessing it.

The Code of Practice states that when considering the benefits of offering a separate or single-sex service, the service provider should think about whether women’s safety, privacy and/or dignity would be at risk in the service if it was shared with men. If offering a single-sex service for women, the service provider should consider factors such as whether women are likely to be in a state of undress and whether the service is provided as a result of, or connected with, male violence against women.

In those circumstances, the benefits of offering a separate or single-sex service will likely outweigh other considerations in the balancing exercise.

Numerous examples are provided in the Code of Practice which also states that it is good practice to keep records of why a decision has been made to provide (or not provide) a separate or single-sex service along with supporting evidence.

• Policies and exceptions for separate and single-sex services – the new content in the Code of Practice explains that service providers may need to develop policies regarding the provision of separate or single-sex services, the specific circumstances that may require a different approach to that set out in policy and examples of these. The Code of Practice gives examples.
• Separate or single-sex services in relation to gender reassignment – there is updated content which explains that service providers should consider their approach to trans people’s use of their services when deciding whether to provide a separate or single-sex service. It includes examples of relevant considerations when deciding whether the exclusion of trans people from a separate or single-sex service is a proportionate means of achieving a legitimate aim.

The Code of Practice gives an example. Group counselling sessions are provided to female survivor of domestic violence and a trans man, presenting as a man, is excluded because the service provider is concerned that women service users could reasonably be alarmed or distressed by his presence. The exclusion could amount to direct gender reassignment discrimination but the service provider is likely to be able to show that the decision to exclude was proportionate.

• Communal accommodation – the updated content explains how the Act applies to communal accommodation in respect of the protected characteristics of sex and gender reassignment. When excluding a person from use of communal accommodation because of either of these two protected characteristics, there must be consideration of whether and how far it is reasonable to expect that the accommodation should be altered or extended or that further accommodation should be provided. In addition, the frequency of demand for the accommodation by persons of each sex must be considered. Excluding a person from use of communal accommodation provided for their own biological sex because of gender reassignment will only be lawful if it is a proportionate means of achieving a legitimate aim.

More details of the Code of Practice consultation can be seen here EHRC Code of practice for services, public functions and association consultation.