Single-sex services ‘can exclude trans people if proportionate and justified’

The equalities watchdog said there are circumstances where organisations can legally prevent, limit or modify trans people’s access to the service.

A sign for unisex non-binary gender neutral toilets in south-west London (Victoria Jones/PA) (PA Wire)

Organisations such as refuges and gyms can legally exclude transgender people from single-sex services in certain scenarios, such as to prevent trauma and enable privacy, the equalities watchdog has said.

There are circumstances where organisations can legally prevent, limit or modify trans people’s access to such a single-sex service, the Equality and Human Rights Commission (EHRC) said, but they must balance the impact on all service users and demonstrate “a sufficiently good reason”.

Doing so could be unlawful if the organisation cannot show such action is a proportionate means of achieving a legitimate aim, the watchdog added.

This could be to enable privacy or decency, to prevent trauma or to ensure health and safety.

The fresh guidance, published on Monday, is intended to be a practical guide to help organisations such as hospitals, retailers, hospitality and sports clubs implement policies that are legal and balance the needs of different groups.

It is the first time guidance on this issue has been issued, and follows pleas for clarity from the Commons Women and Equalities Committee and service providers.

But the LGBTQ+ organisation Stonewall said the guidance is likely to cause more confusion and a greater risk of illegal discrimination.

Stonewall and other groups had recently called for the UN to review the EHRC’s international accreditation because of its stance on trans rights.

This was refused by the Global Alliance of National Human Rights Institutions last week, with the EHRC appealing to critics to “reset relations”.

The new guidance contains hypothetical examples of organisations practically interpreting the Equality Act.

These include a domestic abuse refuge excluding trans women from emergency accommodation if feedback from female survivors “indicates that they would feel uncomfortable sharing accommodation with trans women for reasons of trauma and safety”.

The refuge could compile a list of alternative sources of support for trans women in the local area, it said.

Organisers of a group counselling session for female victims of sexual assault could exclude trans women if they judge that those attending “are likely to be traumatised by the presence of a person who is biologically male”, it says.

A leisure centre could choose to exclude trans women from female-only fitness classes “because of the degree of physical contact involved”, while a gym could introduce self-contained gender-neutral changing facilities if there are concerns about the safety of trans men in communal changing rooms.

There is no place for discrimination against anyone based on their sex or gender reassignment

Baroness Kishwer Falkner, EHRC chairwoman

The EHRC says some providers may wish to develop a policy on how services are provided to trans people, but this is not legally necessary.

It is good practice to record reasons and evidence for taking a decision to provide a separate or single-sex service, it adds.

When making decisions, providers should treat everyone with dignity and respect, and be aware that trans people may need access to services relating to their biological sex.

For example, it would likely be unlawful if a trans man is denied access to breast screening and told this service is provided for females only, the watchdog said.

It also advises organisations to consider “less restrictive options where possible”.

It gives the example of a women’s clothes shop deciding it is not necessary to exclude trans women from changing areas as the privacy and decency of all users can be assured by the provision of separate cubicles.

It said it is most likely to be proportionate to exclude, modify or limit trans people’s access when a provider has limited resources and physical space to make changes, or when dealing with groups with particular needs, such as female victims of male assault.

Baroness Kishwer Falkner, EHRC chairwoman, said: “Our mission at the EHRC is to protect the rights of everyone and ensure that people across Britain are treated fairly.

“There is no place for discrimination against anyone based on their sex or gender reassignment.

“Where rights between groups compete, our duty as an independent regulator is to help providers of services and others to balance the needs of different users in line with the law.

“Organisations are legally allowed to restrict services to a single sex in some circumstances. But they need help to navigate this sensitive area. That is why we have published this guidance – to clarify the law and uphold everyone’s rights.”

A Stonewall spokesman said the guidance appears to contravene the core presumption of the Equality Act – inclusion – and shifts the focus on to reasons for excluding trans people.

He said: “The examples appear to encourage blanket bans, rather than by a case-by-case decision making, and cover restricting access to day to day settings like bathrooms and gym classes, which is extraordinary.

“This leaves more, not less confusion, and more, not less, risk of illegal discrimination.”

Maya Forstater, executive director of the campaign group Sex Matters, called the guidance a “big step forward”.

She said: “It recognises that everyone’s rights need to be balanced, and often the way to do this is with a policy based on biological sex, expressed clearly and simply. 

“The new guidance provides examples of how trans people can be included without undermining other people’s dignity and privacy (for example with ‘gender-neutral’ options), and says that everyone should be treated with respect.”

SNP MP Joanna Cherry welcomed the guidance in a tweet, adding: “I hope it will be given the respect it deserves particularly given the failure of recent attempts to undermine the legitimacy of @EHRC.”