The new EHRC Code of Practice: What it means for single-sex services and facilities

Following the Supreme Court’s decision in For Women Scotland v Scottish Ministers that the term “sex” in the Equality Act 2010 referred to biological sex, the EHRC promised to update their Code of Practice on services, public functions and associations to reflect the updated position (as well as a general update to a Code last published in 2011). Having issued some interim guidance following the Supreme Court’s decision, which came in for criticism, it has taken longer than anticipated for the draft Code to be finalised.

Two important points to make are:

• The draft Code has not yet been formally approved by Parliament, although this may happen soon

• The Code deals with the duties of service providers, and not employers. The EHRC has a separate Code for employers, which is expected to be updated in due course. Whilst the Code does not therefore expressly apply to employers and none of the examples within it are employment examples, some of the general principles are potentially transferrable to the workplace as well as to service provision cases

The area upon which most employers have been seeking guidance since the Supreme Court’s decision last year has been that of the provision of single-sex toilets and changing facilities. When reporting on Employment Tribunal decisions such as Peggie v Fife Health Board and Dr B Upton, we commented that the EHCR Draft Code was awaited with interest for clarity it might provide.

Considerations when to offer single-sex services

The Code considers single-sex services and confirms that where providing a single-sex service, a service provider must be able to demonstrate that doing so is a proportionate means of achieving a legitimate aim. An example of a legitimate aim could be ensuring the safety of women or the privacy and dignity of women and/or men. In determining whether a single-sex service is proportionate, the service provider should consider the balance between:

• The benefits of offering the service as a separate or single-sex service

• The needs of those who are accessing it

• The impact on those who are excluded from accessing it

In considering the impact on those who are excluded, this includes the impact on people of the opposite sex and the impact on trans people of the opposite sex (e.g. a trans man will be excluded from the men-only service because his sex is female and a trans woman will be excluded from a women-only service because her sex is male).

The service provider should therefore consider whether the disadvantage to trans people outweighs the benefit of achieving the legitimate aim. They should also consider whether there is a less intrusive option than excluding trans people which would be proportionate

Case use examples

An example of toilets in a shopping centre

A service provider operates a shopping centre and decides to renovate the centre. It initially intends to only provide separate-sex toilets to improve the safety and comfort of users. This disadvantages trans people because it means that a trans person cannot access a toilet catered towards their acquired gender. They also note that this option may cause safety risks and distress for trans users if required to use the toilets designated for those of the same biological sex. The service provider therefore decides to also provide toilets in individual lockable rooms with hand basins, which can be used by people of either sex.

It also provides an example of a smaller operation

A community group is opening a small advice centre. It decides to provide separate-sex toilets for women and men, and it extends the use of the accessible toilet with baby changing facility so it can also be used as a mixed-sex toilet for anybody who does not wish to use the toilet for their sex. This is likely to be proportionate given the size and resources of the centre and takes into account the needs of all the potential service users. The community group should, on an ongoing basis, monitor whether there is any negative impact on both trans and disabled people and take appropriate action.

The draft Code clarifies that if a service provider admits trans people to a service intended for the opposite sex, it can no longer rely on the exception for single-sex services and such a service is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it.

When is it discrimination?

The suggestion therefore is that there is likely to be a discrimination claim if female-only toilets are available to be used by biological men. In terms of whether female-only toilets can also exclude a trans man, who is a biological woman, but presents as a man, the Code says that it will not be unlawful on grounds of gender reassignment to prevent, limit or modify trans people’s access to the service for their own sex, as long as doing so is a proportionate means of achieving a legitimate aim. A legitimate aim might be to prevent discomfort or distress for other service users.

However, the service provider must consider whether there is a suitable alternative service for a trans person before excluding them from facilities provided for their biological sex and it is very unlikely to be proportionate to leave a trans person in the position where there is no service they are allowed to use. If the service provider does not act proportionately, this will likely be direct or indirect discrimination on grounds of gender reassignment.

The position for employers is further complicated by the Health and Safety regulations, which say that separate toilets for men and women are required except where each toilet is in a separate room lockable from the inside.

The Code also has a section on asking individuals about their sex and comments that: Discrimination or harassment could occur if, for example, individuals are asked about their sex in a way that requires them to disclose this information in public, or if the language or manner of a request is rude, combative or offensive. Any request that is necessary should take this into account and be made sensitively and discreetly.

Recommendations

The message from the draft updated Code of Practice of service provision is that some complexity remains. The issues require considerations of proportionality and the solutions might be different for different service providers and employers depending on their assessment of proportionality and the physical constraints of their spaces. For some, it may be easier to provide single-sex and gender-neutral toilets

We do not anticipate that when the Employment Code of Practice is updated that it will provide one simple answer for all employers.

We recommend that employers carry out audits of their current toilet and changing facilities, review the Code of Practice (but acknowledge that it is not specific guidance to employers) and assess whether any changes to their current spaces and practices might be sensible. The Code is clear that it is good practice to record the reasons why a decision has been taken to provide or not to provide a separate or single-sex service, along with any supporting evidence.