EHRC CONSULTATION
MORE EXTENSIVE GUIDANCE FOR A MORE DETAILED RESPONSE
Change 2.1 New content on gender recognition certificates (GRC)
The EHRC guidance acknowledges that the EA 2010 refers to “transsexuals” and the EHRC Guidance instead have "used the term ‘trans’ to refer to someone with the protected characteristic of gender reassignment.” Referring to a ‘trans person’ has some utility, but often it is extremely relevant to be clear if this person is actually a male or a female with the protected characteristic of gender reassignment.
Given that the SC Ruling clarified that the terms “man” and “woman” relate to biological sex, these terms should also be plainly used in any guidance. Using the term woman in reference to a man (or vice versa) is confusing at best and an ideological bias at worst.
The current EHRC Guidance refers to terms that do not appear in the EA 2010, such as “birth sex,” “acquired gender,” a “trans man” and a “trans woman.” The EHRC Guidance 2.1.7. gives the confusing statement that a “trans man with a GRC is a woman and a trans woman with a GRC is a man.”
Members of the public do not know if a “trans woman” refers to a biological woman or a biological man. It would be clearer if the guidance only uses the word woman when referring to a woman. Thus, when referring to a biological woman who identifies as trans, it should refer to a woman with the protected characteristic of gender reassignment or a trans-identifying woman. A biological man who identifies as trans should be called a man with the protected characteristic of gender reassignment or a trans-identifying man.
If the EHRC must use the terms “trans woman” or “trans man,” the guidance should make clear every time what this means e.g. “trans man (biological woman)” or “trans woman (biological man). It should not be assumed that the general public or service providers will read the entirety of the guidance, including 2.1.7 which defines these terms. They are more likely to focus on the specific areas of relevance to them, so the language should be clear throughout. The word Woman should be used exclusively for biological women, but if necessary, the EHRC guidance should clearly state if the individual is a biological woman or a biological man with each example.
Change 2.2 New content on asking about sex at birth
The phrase “sex at birth” is unnecessary, since humans cannot change sex. The SC Ruling acknowledged that “the individual’s biological sex may continue to be readily perceivable.” The EHRC Guidance should reassure service providers that correctly perceiving someone’s sex is not a breach of privacy.
A duty bearer or service provider may see a man who is attempting to access a female single-sex service, and the EHRC should reassure service providers that normal safeguarding concerns are appropriate. For example, any man attempting to enter a female changing room should be challenged as his sex is not female.
In practical terms, the SC Ruling states “there is no guidance as to what it means to live in a gender, other than to ensure that the person’s name in certain documents is a name in the acquired gender.” As such it is hard for a duty bearer to know the difference. Statistically it is much more likely that a person does not have the protected characteristic of gender reassignment (and is simply a predator, voyeur or exhibitionist). Yet, the EHRC Guidance omits to give any practical guidance on this and simply assumes that a person does indeed have the protected characteristic of gender reassignment. The EHRC should clarify that a male with the protected characteristic of gender reassignment is not entitled to use a service for the opposite sex.
There is no need to deploy any particular sensitivity when asking about sex unless there is some reason why the service provider believes that a particular man has the protected characteristic of gender reassignment. It is entirely appropriate for an organiser of a sports event to ask for proof of sex when someone wishes to enter a single-sex category, in the same way that one could be asked for proof of age to enter a children’s or veterans' category. An example could be given to clarify that it is lawful for a policy for a sport or recreational event to state that, in order to compete in a sex category, proof of eligibility is required.
Change 2.3 New content on defining sex at birth
2.3.3. The guidance should clarify that neither the protected characteristic of gender reassignment nor the possession of a GRC changes a person’s sex.
Change 12.1 New example on women-only associations
The EHRC guidance should give the example that a women-only association could include a recreational activity that is a non-competitive sport. For example, a recreational women-only cycling group can lawfully exclude all males, including trans-identifying males. It is lawful to have a women-only yoga club or hiking club.
Change 13.1 Updated section on competitive sport
13.1.3 The example of football is incontrovertible as an example of male advantage in sport. The guidance should state clearly that in a gender affected activity such as football, it is lawful to organise single-sex or separate-sex events. The EHRC should give guidance that when a tournament is single-sex or separate sex, the term ‘sex’ (and not ‘gender’) should be used. It would be useful to give an example of a race entry form which asks ‘What is your sex?’ With a tick box for ‘Male’ and a tick box for ‘Female.’
13.1.5. Instead of giving an example of permitting a girl to join a boys’ team, it would be better to advise that the team should be relabelled as a mixed-sex team. This example would only make sense if there was no girls team available and only after a risk assessment.
13.1.7 By saying that a person organising a single-sex or separate-sex event “should consider their approach to trans competitors access” this could lead to an organiser mistakenly thinking that they could allow an individual to enter into an event category for the opposite-sex. Worse, this may create the impression that there is an imperative to do so. Instead, the guidance should be clear and advise an organiser to consider how to encourage any trans competitors to compete within their correct sex category or to consider creating an Open event in addition to a Female category.
13.1.14 This is muddled and should be removed. The EHRC Guidance states “In some circumstances, limiting, modifying or excluding the participation of trans people for the reasons of fair competition or safety may be necessary to avoid discrimination against other competitors.” For reasons of fair competition or safety it may be necessary to remove people of the male sex from a female sports category. Sex is the issue, not whether or not someone has the protected characteristic of gender reassignment.
First, this does not differentiate the sex of the trans-identifying people – it is necessary to exclude trans-identifying males from the female category while including trans-identifying females.
Second, this suggests that it could happen on a case-by-case basis, whereas once an activity has been deemed sex affected and there is a fairness and safety issue, then it is lawful for the single-sex category to exist and therefore all opposite-sex people are lawfully excluded.
Categorisation by sex is lawful as the provision is for average advantage, not individual advantage. Section 195(2) provides that the EA is not contravened if you do something, in relation to the participation of transsexual persons, if it is necessary to secure (i) fair competition or (ii) safety of competitors. There is no uncertainty here.
The logistical requirements of a case-by-case assessment are impractical and unworkable. The admission of one person of the opposite sex means it is no longer possible to rely on the single-sex exemption of Section 195(2). Either it is single-sex, or it is not. If an organisation allows some opposite-sex individuals but not others, then it is at risk of discrimination.
13.1.15 The first sentence is correct, but it should be added that where a person has decided to organise the sex affected activity as a single-sex activity or separate-sex events, Section 195(2) applies.
13.1.16 This may still be protected by the exception in Section 195, if there were specific roles about what each sex would play e.g. mixed doubles tennis. Where an organiser chooses not to apply Section 195, participants can bring claims of being excluded based on their sex.
13.1.17 It is lawful to exclude all males, so if an event is for women and trans-identifying males then it should be labelled as a mixed-sex event and is not a Female category. The example is wrong. It is nothing to do with the individual performance of a trans-identifying male. It should be about them as a class.
13.1.18 This has misleading and erroneous points. The only relevant factor when deciding if it is lawful to have single-sex or separate-sex events is whether it is a sex affected “sport, game or activity of a competitive nature”. This involves recognising competitive advantage from sex-based differences in strength, stamina or physique as well as safety risk factors.
The extent of the competitive advantage for males does not matter for an activity to be regarded as sex affected. The EHRC guidance should make it clear that sports with very small competitive advantages for males can still lawfully categorise by sex.
The level of competition (elite or grassroots) does not matter for an activity to be regarded as sex affected. The EHRC Guidance should make clear that two-tier policies which protect the elite level but open up the grassroots level to discrimination claims should be avoided.
The extent to which an event has a significant social or recreational purpose does not matter for an activity to be regarded as sex affected. The EA 2010 specifies that it can be a “game or other activity of a competitive nature.” The Guidance should make it clear that even a fun run, which has a male and a female category, with runners timed and ranked, still constitutes a sex affected activity of a competitive nature.
Moreover, Schedule 3, paras 26-28 of the EA 2010 permit a service provider to discriminate on the basis of sex to provide separate or single-sex services of a non-competitive nature. A club could organise female-only, recreational sessions, to encourage more females to participate in a new activity.
The numbers of competitors in an event are irrelevant. The EHRC guidance should make it clear that the female category should still be single-sex whether it is a village fun run or a mass participation event.
There is no known medical intervention, including testosterone suppression, that eliminates male advantage or changes sex. This is irrelevant. Reducing the sporting ability in an individual male by reducing his testosterone does not create a right to enter a female category. The EHRC should not be encouraging sports bodies to create a “handicap” policy to permit some males to compete in the women’s category. Allowing any males into a Female category on a case-by-case basis creates potential sex discrimination.
Change 13.2 Updated section on separate and single-sex services for men and women
13.2.18. The Guidance should make clear that where a service involves women and girls being in a vulnerable state of undress, then the creation of a female-only space is a proportionate means of a legitimate aim. A communal changing room is given as an example, but it should also include toilets. The guidance should make it clear that if a changing room is labelled as Female then it must be single-sex and no males may use it. In order to avail themselves of the Schedule 3 exception, a single-sex service must be uniformly single sex. So if any male is granted access (regardless of having the protected status of gender reassignment or not), then it ceases to be a single-sex space. Consequently, all males could be granted access as the single sex exception no longer exists and it is no longer female-only.
Change 13.3 New section on justification for separate and single-sex services
13.3.15 This example creates a scenario which could expose the gym to sex discrimination claims. The phrase “no complaints of inappropriate conduct” should be removed. There are many reasons why women and girls are hesitant to complain as well as instances of complaints being ignored. The example should go further and posit that some women complain but the gym takes no action. Women self-exclude from using the service. Subsequently, a predator’s recording device is discovered in the changing room and the gym is liable for sex discrimination.
The guidance should make it clear that solely providing individual cubicles for changing rooms which are able to be used by either sex is likely to be direct sex discrimination. Women suffer disproportionately where there are unisex cubicles. Where predators place recording devices in unisex changing cubicles, the perpetrators are overwhelmingly male and the victims are overwhelmingly female. For example, Gang hid in pool changing rooms to film young women undressing. A better solution would be to designate some cubicles as Female, Male and Unisex.
13.3.19. This is very clear and should be commended.
13.3.20. This is very clear and should be commended.
Change 13.4 New content on polices and exceptions for separate and single-sex services
13.4.7. The EHRC should point out that it may be direct sex discrimination to only provide a unisex service which subjects women to a worse detriment than to men. Women are more likely to be victims and males are more likely to be perpetrators of secret filming in individual cubicles. Women's Rights Network report on leisure centres reveals that a third of leisure centres in the UK only have mixed-sex ‘changing villages’ with no single-sex provision. This disproportionately harms women and girls. An example of best practice should be given with single-sex changing rooms for both sexes and in addition some unisex and family changing cubicles.
Change 13.5 Updated section on separate and single-sex services in relation to gender reassignment
13.5.6. It is completely inappropriate to recommend that a service provider should consider allowing anyone into an opposite-sex service on a case-by-case basis. The “extent to which a trans person presents as the opposite sex” and the “level of alarm or distress caused for other service users” is deeply subjective and irrelevant to the legality of allowing them into an opposite-sex service. It is possible for a trans person to believe mistakenly that they ‘pass’ as a member of the opposite sex, but in reality their sex is readily perceivable. This is unworkable and exposes staff to potential abuse.
If a service is labelled as single-sex, it should be single-sex. If a service becomes a mixed-sex service, then all Schedule 3 exceptions will be invalid and the organisation is exposed to discrimination risk.
Change 13.6 Updated content on communal accommodation
Guidance should recommend that where sports or clubs have policies regarding communal accommodation, for example, for residential training camps, they should be single-sex or separate sex.